HKSAR v. Kwok Wai Hong

DCCC 248/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 248 OF 2017

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to Charge 1 (theft) and Charge 3 (attempted theft) and admitted to the facts. Upon the application by the prosecution, I order Charge 2 to be left on court’s file and not to proceed with without the leave of this court or that of the Court of Appeal.

THE FACTS

Charge 1

2.On 25 September 2016 at about 6:30 pm, PW1 was on an escalator in Trend Plaza South Wing, 2 Tuen Hop Street, Tuen Mun, New Territories.  At that time, PW1 was holding her baby daughter in her right hand.  Apush chair was placed on her left hand side.  Her young son was standing in front of her.

3.PW1’s mobile telephone which cost $6,000 was placed in the outside pocket of her backpack which she was wearing on her back.

4.Then PW1 noticed the defendant standing very close to her.  Suddenly, PW1 felt her backpack was touched and she immediately turned around.  She saw the defendant was holding her mobile telephone.

5.PW1 immediately shouted robbery.  The defendant dashed forward.  PW1 tried to catch him but in vain.  She lost her balance and fell to the ground while the defendant was running away.

6.When PW1 stood up, she found her mobile telephone was on the ground.  The defendant was restrained by two male passersby.

7.Upon police arrival, the defendant was arrested for theft.  Under caution, the defendant said he only picked up the telephone to give it back to PW1 and did not rob.

8.After investigation, the defendant was released on police bail.

Charge 3

9.On 29 December, 2016 at about 6.30pm, PW2 was shopping in Kwong On Tong Supermarket at Shop 25, Ground Floor, Tsing Shan Square, Tuen Mun, New Territories with her husband.

10.PW2 was carrying her handbag which was locked by a magnetic lock by the left forearm close to the elbow whilst each of her two hands was holding a bag.

11.Inside the handbag was PW2’s personal belonging including a brown Samsung mobile telephone.

12.Suddenly, PW2 felt the handbag was pulled by someone and she immediately looked at it.  She saw the magnetic lock was unlocked and defendant’s right hand was inside her handbag. She shouted ‘Ah’.  Thereafter, the defendant took his right hand out of the handbag.

13.PW2 asked the defendant what he was doing.  The defendant denied he touched the handbag.  The matter was reported to the police.

14.Subsequently the defendant was arrested by police for attempted theft.  Under caution, the defendant denied the offence.

15.The defendant committed the offence whilst on police bail.

CRIMINAL RECORDS

16.The defendant has appeared before the court on 13 previous occasions in respect of 14 offences.  Most of them are dishonesty related. Nine of those were for theft and two for pickpocketing. His last conviction was a theft case. In April 2016, he was sentenced to a term of 3 months’ imprisonment. That means the defendant committed the present two offences less than 2 months after he was last released from prison on 4 August 2016.

MITIGATION

17.The defendant is 43 years of age.  After completion of Form 2 in Hong Kong, he worked in different occupations including delivery worker, construction worker and waiter.  He is still single and lives with his elder brother.

18.The defendant claimed that he committed the offences at the spur of the moment out of greediness.  He broke up with his girlfriend and felt depressed.  Now he is very remorseful and asks for leniency from the court.

CONSIDERATIONS

19.Pickpocketing is a serious and most irritating offence.  Apart from the financial loss, it often results in significant inconvenience to the victims.  The Court of Appeal in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 laid down the guidelines, namely 12 to 15 months’ imprisonment after trial for a first offender, with upward adjustment for aggravating features including: (1) the offence was committed in a crowded public place; and (2) the defendant was a repeat or persistent offender.

20.I accept that the present two charges were simple and unsophisticated pickpocket committed by the defendant alone.  However, it must not be ignored that both cases relate to stealing of mobile phones. They are not something of low value.

21.All in all, I find 15 months’ imprisonment an appropriate initial starting point for each charge.  

22.It is not disputed that the offences were committed in shopping areas in Tuen Mun sometime at about 6:30pm.  It is known to be busy during such hours.  People rush back home from work or from school.  For that matter, I would add 3 months to the starting point.

23.In my view, the defendant’s criminal record is appalling.  He is properly regarded as a persistent offender.  He committed the first offence whilst he was on police bail.  I will add 9 months to the initial starting point.  The resulting starting point would be 27 months’ imprisonment for each charge.

24.Apart from the plea of guilty, there is no effective mitigating factor to justify any reduction of the sentence. The defendant will be given full one-third discount for his guilty plea.  The sentence on each offence will be one of 18 months’ imprisonment.

25.I have to consider the question of totality.  Having looked at all the circumstances and having considered the record of the defendant, it seems to me that it would be appropriate to order that 4 months of the sentence on Charge 3 should run consecutive to the sentence on Charge 1.  The total sentence for those two offences will be 22 months’ imprisonment.