HKSAR v. Lui Hoi Yan

DCCC 374/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 374 OF 2016

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Reasons for Sentence

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Charges and facts

1.The Defendant pleads guilty to 2 charges of theft by pickpocketing. 

2.In the evening on 13 January 2016, in a shopping centre in Mong Kok, she followed a female victim to the outside of a shop and used a grey jacket to cover her forearm to insert her hand into the side pocket of the female victim’s jacket. She stole an iPhone 6 (valued at $7,188) in a phone case.  The police in operation had observed her throughout and stopped her with the phone still in her hand.  She admitted the offence after arrest and caution.  She said she had to steal to pay her daughter’s book fees.  These facts constitute the 1^st Charge. 

3.Whilst on police bail for the 1^st Charge, in the evening on 10 March 2016, she stole an iPhone 6 in a phone case from a female victim in a crowded shop in Sham Shui Po.  The female victim was alerted by a bump and checked to find her phone missing from her jacket pocket but being held by the Defendant, who was running away.  The Defendant threw the phone in the case to the ground when being chased.  After the Defendant was subdued, the police arrived and arrested the Defendant.  After caution, she said she stole because she had no money. These facts constitute the 2^nd Charge. 

Mitigation

4.The Defendant is 40 years of age, of F. 3 education level.  She had 8 previous records for theft, the latest sentenced to 18 months in August 2014. 

5.Her counsel Mr. Cheung does not dispute that her repeat theft convictions stand as an aggravating feature for both charges.  Her commission of the second theft herein whilst on bail for the first one and the location of the second theft being a crowded place are each aggravating features. 

6.I am told that her husband, presently separated, had made off with the book fees for their 4 children, in total $32,000, so that she was driven to committing the present offences to raise money for them. 

7.After pleading not guilty on the plea day, she wrote in to indicate her guilty pleas before the date set down for trial.  Mr. Cheung asks for the full one-third discount.  I am inclined to give her somewhere between one-third and one-fifth in this regard.  

Sentencing factors

8.In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal suggests a guideline sentence of 12 to 15 months for pickpocketing after trial for a first time offender.  A heavier sentence would be imposed where there were aggravating factors, which included:

(1) The offence committed in a place in which the public is at particular risk, such as crowded places like the MTR or the race course, crowded shopping areas where the pedestrian traffic is heavy;

(2) Repeat or persistent offending.

Sentencing this Defendant

9.Although each was a straightforward pickpocketing, I have to factor in the aggravating features.  I do not regard the purpose of her stealing, ie for paying the book fees, a mitigating factor. 

10.For the 1^st Charge, I take 12 months as the basic starting point.  I add 3 months for her recidivism.  From this 15-month actual starting point, I give her a discount of 4 months for her not fully timely guilty plea.  The sentence is 11 months. 

11.For the 2^nd Charge, I take 12 months as the basic starting point, I add 3 months for her recidivism, 3 months for the commission of it whilst on bail for another theft charge, and 3 months for the crowded location.  From this 21-month starting point, I give her a discount of 5 months for her not fully timely guilty plea.  The sentence is 16 months.

12.On totality basis, I order 4 months of the 1^st Charge to be consecutive to the 2^nd Charge.  The total sentence is 20 months.