HKSAR v. Chan Mei Lai and Another

DCCC 19/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 19 OF 2017

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REASONS FOR SENTENCE

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1.D1 is charged with 4 counts of Theft (Charges 1 to 4), contrary to section 9 of the Theft Ordinance, Cap 210 while D2 is charged with 1 count of theft (Charge 4). D1 now pleads guilty to Charges 1 and 4 and D2 also pleads guilty to Charge 4. Charges 2 and 3 were left in court file and shall not be proceeded with without the leave of the court.

Summary of facts

2.The facts of the case are straightforward.  The nature of the offences is one of pickpocketing.  At about 1:25 pm on 26 October 2016, Madam Tso, a housewife, went to a pharmacy on Sau Fu Street, Yuen Long, New Territories to buy shampoo.  After making the payment, she put her wallet back to the backpack she was carrying and properly zipped the backpack.

3.Later at about 1:45 pm on the same day, Madam Tso went to another pharmacy nearby.  She then found that her backpack had been unzipped and her wallet had gone missing.  The wallet contained 7 bank cards, cash HK$3,000 and 1 octopus card.  She immediately made a report to the police but no suspect was found and the wallet was not recovered.

4.On 2 November 2016, a team of police officers carried out an anti-pickpocketing operation in Yuen Long.  At around 2:39 pm, the officers saw D1 and D2 wandered outside a bookshop on Sau Fu Street.  The officers observed that D1 and D2 were behaving furtively and were staring at the personal belongings of the passers-by.

5.Moments later, the officers saw D1 and D2 following a lady who was carrying a suitcase with her right hand and a backpack on her left shoulder. They saw D1 unzipped the backpack of the lady and took a wallet out.  Then D1 handed the wallet to D2 and they continued to follow the lady from behind.

6.Upon seeing what happened, the officers intercepted D1 and D2.  D2 dropped the wallet on the floor and one of the officers picked it up.  The wallet contained a PRC identity card, 3 bank cards, cash of about HK$60 and RMB$240.  As a result, both D1 and D2 were arrested.

7.In the subsequent cautioned interview of D1, she stated the followings:-

(a) she committed Charge 4 jointly with D2 who is her elder sister. She was responsible for the actual act of steal while D2 acted as her cover;

(b) she admitted that she committed Charge 1 by herself. She said she had stolen a wallet from the backpack of the victim outside a pharmacy on the date of Charge 1. She then took all the cash from the wallet and discarded the wallet in a rubbish bin;

(c) she had spent all the stolen money of Charge 1.

8.In the subsequent cautioned interview of D2, she stated the followings:-

(a) she committed Charge 4 jointly with her younger sister D1;

(b) she was responsible for covering up D1 while D1 was responsible for carrying out the actual act of stealing;

(c) after D1 took the wallet from the backpack of the victim, police officers came and intercepted them;

(d) she was not involved in Charge 1.

Mitigation

9.D1 is 40 years old and she is a widow.  She received form 1 education. She has a 16-year-old son but they do not live together.  She lives with her parents. D1 has been suffering from mental problem for many years.  Her mental condition is stable in recent years and she is receiving outpatient treatment regularly. However, because of her illness, she was not able to find a stable job and she is receiving disability allowance at about HK$2,000 per month.  She has 7 previous convictions and 5 of which were theft convictions.

10.Counsel for D1 submitted that D1 is very remorseful now.  She was fully co-operative with the police and made full confession for both charges. Defence submitted, without D1’s confession, police might not have sufficient evidence to prosecute her on Charge 1.  Defence submitted although D1 has some previous similar records, however, the most recent conviction was almost 14 years ago and the most recent similar conviction dated back to 1994.  Defence urged the court not to put too much consideration on D1’s criminal records.

11.Concerning D2, she is 46 years old and a widow.  She received primary 3 education and is a housewife.  Her husband passed away in 2014.  She has 3 sons and 2 daughters.  She lives with one of her daughters, her youngest son, two grandchildren.  She is receiving CSSA at HK$10,500 per month.  Concerning criminal record, she has 10 previous convictions and 9 of which were theft convictions, though the most recent one dated back to 1997.

12.Counsel for D2 submitted that D2 is also very remorseful.  She pleaded guilty to the charge.  She admitted that she committed the offence out of greed and she wanted to help D1.  Defence urged the court to accept that D2’s role is comparatively minor and asked the court to sentence D2 leniently.

Sentencing consideration

13.The Court of Appeal had in HKSAR v Ngo Van Huy, unrep, CACC 107/2004 approved the sentencing guideline for pickpocketing in R v Vy Van Kien and Another [1991] 1 HKLR 422.  The sentence for a first time offender without any aggravating feature should be 12 to 15 months after trial.  According to Ngo Van Huy, aggravating features include the use of weapon, the offence was committed in a particularly crowded place, involving more than one offender or it was organized, or the accused is a repeat offender.

14.In the present case, Charge 4 was committed by both defendants.  They acted together and each of them took up a different role.  Though not sophisticated, Charge 4 does involve some planning.  They both have numerous previous convictions involving dishonesty so the court will not treat them as first offenders, though I note that both defendants managed to stay away from trouble for many years.  Concerning whether the location is a crowded place, there is no evidence before the court that the material location is a particularly crowded area at the material time.  Therefore, the court does not find it as an aggravating feature in this case.

15.Considered all the circumstances, their personal background, their criminal records, and the mitigation put forward, for Charge 1, I adopt 12 months’ imprisonment as the starting point.  I accept that it was only D1’s confession to the police that led to the conviction of this offence. Therefore, D1 is entitled to have a larger discount for pleading guilty to Charge 1.  All matters considered, I am going to give her a 50% discount on Charge 1.  For Charge 1, D1 is sentenced to 6 months’ imprisonment.  For Charge 4, I adopt 15 months as the starting point for both defendants.  After giving one-third discount for the guilty pleas, both D1 and D2 are sentenced to 10 months’ imprisonment.  After considered totality of sentence for D1, I order 6 months of Charge 4 to be served consecutively to sentence of Charge 1.  The total sentence for D1 is 12 months’ imprisonment.