HKSAR v. Chen Weibin and Another

DCCC 849/2017

[2018] HKDC 346

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 849 OF 2017

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REASONS FOR SENTENCE

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1.Defendants Chen Weibin (D1) and Xu Liuwang (D2) have been charged as follows.

2.In Charge 1, D1 has been charged with Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  The particulars are that D1, on the 13^th day of July, 2017, at the rear staircase near 7-Eleven Convenience Store, 2^nd Floor, Sheung Tak Shopping Centre, Sheung Tak Estate, Tseung Kwan O, New Territories, in Hong Kong, together with another person unknown, stole cash of $6,100 Hong Kong currency, property belonging to Wong Tin Tso.

3.In Charge 2, both D1 and D2 have been charged with another Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  The particulars are that D1 and D2, on the 17^th day of July, 2017, at the rear staircase near Phase 2 Shop No 116, Fortune Kingswood, No 18 Tin Yan Road, Tin Shui Wai, New Territories, in Hong Kong, stole cash of $3,160 Hong Kong currency, property belonging to Cheung Wai Chun.

Charge 1

4.On the day of the offence, at about 9:25 am, shortly after the victim Wong (aged 80) had withdrawn cash from a bank at the subject shopping centre, a male approached Wong and accused him of taking his money.  Wong denied but this male insisted and brought Wong to a rear staircase of the shopping centre. There, another male turned up and asked Wong to return the money to the first male.  The two males then searched Wong and took away $6,100 from Wong.  Wong was told to walk upstairs before the two of them left.  Wong returned home and after discussing with his family members reported the matter to the police.

5.Later, in an identification parade, Wong identified D1 as one of the two males.

6.CCTV had captured how D1 and the unknown male approached Wong.

Charge 2

7.On the day of the offence, at about 9:15 am, shortly after the victim Madam Cheung (aged 89) had withdrawn cash from a bank at the subject shopping arcade, she saw D1 suddenly knelt in front of her.  D1 showed her a pile of money in his hand saying that he had found the cash and suggested sharing it with her.

8.D1 then brought Madam Cheung to a rear staircase in the shopping arcade.  There, D2 suddenly turned up and asked if D1 and Madam Cheung had found his money.  D1 denied and he asked to check Madam Cheung’s shoulder bag. D1 then took away and searched the shoulder bag.  D1 took away cash from her shoulder bag and from her wallet before returning the shoulder bag to her.  D1 told her to leave.  She refused.  At this time, police came and stopped D1 and D2.  Madam Cheung checked and confirmed that she had lost $3,160.

9.Upon search, D1 was found to be in possession of an octopus card, a Two-Way Permit, two waist bags, 3 piles of money namely (a) one HK$500 banknote wrapping 40 pieces of RMB1 banknotes inside, (b) one HK$500 banknote wrapping 42 pieces of RMB1 banknotes inside, and (c) one HK$1,000 banknote wrapping 49 pieces of RMB1 banknotes inside; a separate pile of cash in the amount of HK$3,620, 2 keys and 2 mobile phones.

10.Upon search, D2 was found to be in possession of cash in the amount of HK$1,092 and RMB177, an octopus card and 5 keys.

11.Both were arrested.  Under caution, D1 admitted that he had deceived money from Cheung together with D2 as he was in need of money for medical treatment; and D2 said that it was D1 who had asked him to lead the way in Tin Shui Wai for D1 to find a target.

12.Back at the station and while under video-recording, D1 said that he was suffering from diabetes, high blood pressure and lung cancer; that he arrived in Hong Kong via Lo Wu the day before but had no fixed place of abode.

13.Under separate video-recording, D2 said:-

(a) He came to know D1 in the Mainland years ago; he identified D1 from the CCTV footages and that D1 came to find him on the day before arrest; he knew that D1 wanted to steal money and that D1 used to do the same in the Mainland; and

(b) He was a night shift security guard working in Tuen Mun; D1 had stayed at his place the night before; D1 had told him that he wanted to get money in Hong Kong; D1 called him to meet at the shopping arcade subject of Charge 2; so they met there at about 8:40 am; D1 left purporting to smoke; D1 later led an old woman to the subject staircase; D1 and D2 were later arrested.

14.CCTV had captured how D1 and D2 approached Madam Cheung.

Criminal records

D1

15.D1 has a clear record in Hong Kong.

D2

16.D2 has 3 previous convictions accumulated over 2 previous sentencing exercises in 1997 and 2004.  One was a theft for which he served 12 months’ imprisonment and there was also a conspiracy to defraud for which he had served 10 months’ imprisonment.

Antecedents

D1

17.D1’s antecedents statement is agreed.

18.D1 is aged 63 (62 at the time of the offences).  He is holder of a Chinese Two-way Entry Permit.  He was educated to secondary three level in Mainland.  He was unemployed before the arrest.  He is suffering from hypotension (sic) and diabetes.  He is married (wife aged 52) with one son (36) and one daughter (34).  He lived with his wife in Liuzhou, Guangxi.

D2

19.D2’s antecedents statement is agreed save one aspect: he should be educated to Middle 4 level in Guangxi rather than secondary 6 level.

20.D2 is aged 60 (59 at the time of the offence).  He works as a security guard.  He was divorced twice.  He lives with his son (21) in Tsuen Wan.

Mitigation

21.Mr Tam Kam Tong of Tang, Wong & Cheung assigned by the Director of Legal Aid mitigated on behalf of D1.

22.Mr Bok Tin Yuen assigned by the Director of Legal Aid mitigated on behalf of D2.

23.The following is a summary of the mitigation submissions of both defendants.

24.Mr Tam for D1 submitted that D1 is suffering from diabetes, high blood pressure and suspected lung cancer.  His wife had traffic accident some years ago and one of her legs was amputated.  D1 retired from being a government carpenter in the Mainland.  He relied on the monthly pension of RMB1,000 to maintain his family and to pay for his medical expenses.  His son and daughter have married and do not give maintenance to their parents.  Wife has no one to look after her at the moment.

25.D1 committed the offences because he was looking for money to pay for his medical expenses.  The proceeds of the first charge was spent on buying medicine in Hong Kong.

26.He pleaded guilty at the first available opportunity.

27.Mr Tam asks for concurrent sentences for the two offences because they were committed within a week’s time.  D1 did not exert unnecessary pressure on the two aged victims nor had he used more than minimal force.

28.Mr Bok for D2 submitted that D2 has been working as a security guard in Tuen Mun for 4 years.  D2 originally from Guangxi has a son (21) suffering from Japanese encephalitis and who therefore could not walk properly.  D2 has sought help from the welfare authorities and so far has not received any assistance. D2 has arranged for his nephew to take his son to Guangxi.

29.D2 is remorseful and has cooperated with the police.  He has pleaded guilty at an early opportunity.  D2 has further offered assistance to the authorities if required.  D2 has promised never to commit an offence again.

30.D2 has known D1 for a long time and did not know how to refuse D1’s invitation to commit a crime.

31.Mr Bok urged the Court to be lenient towards D2.

Sentence

32.I have considered the mitigations submissions made by Mr Tam Kam Tong for D1 and by Mr Bok Tin Yuen for D2.

33.Apart from the early pleas of guilty justifying a discount of 1/3 from the starting point of sentences, there are no other mitigating factors in respect of either defendant worthy of consideration for further discounts.

34.I have reminded myself of the case of HKSAR v CHU Sau Chi & Others, CACC 294/2002, named by the Prosecution as the basis for bringing this case in the District Court.  That case is one involving a kind of street deception known as “dropped money scams”.

35.Although the beginnings of Charges 1 and 2 in the present case might have displayed one or two features of a “dropped money scams”, I am satisfied that this is only a superficial likeness.

36.The gravamen of the two charges here is more fitting to be described as theft by snatching.

37.Although I note that the maximum imprisonment sentences for theft and deception offences in the Theft Ordinance are both 10 years (note: Fraud offence has a maximum of 14 years), there is a vast difference in usual sentences between deception and snatching offences.

38.In HKSAR v Yeung Kam Tung, CACC 427/2017, it was held that for a “theft by snatching” case without more, the appropriate starting point might be 12 months’ imprisonment.

39.However, I note that in the present case, there are at least two aggravating factors common to both defendants, which are (a) that the two defendants were clearly targeting old people; and (b) that they had acted in concert (in the case of Charge 1, D1 with a person unknown).

40.For each of the two charges, I will adopt an initial starting point of 12 months’ imprisonment.  For the presence of the two aggravating factors, I will enhance the starting point to 15 months.

41.In the case of D1, I find an additional aggravating factor which is that he came to Hong Kong on 16 July solely to commit the offence subject of Charge 2.  So for Charge 2 against D1, I will further enhance his starting point to 18 months.

42.D1 stands convicted of 2 charges which were committed on different dates and at different places.  Subject to totality, the sentences for each ought to be served consecutively to each other.

43.Both defendants, please stand.

44.In the case of D1, I have determined that the global starting point for both charges ought to be at the tune of 24 months’ imprisonment in order properly to reflect the criminality involved having regard to totality.

45.To achieve that aim, I sentence D1 to 10 months’ imprisonment for Charge 1, and to 12 months’ imprisonment for Charge 2; and I further order that 6 months of the sentence for Charge 2 is to be served consecutively to that for Charge 1.  So the total sentence for D1 is 16 months’ imprisonment.

46.In the case of D2, the sentence for Charge 2 is simply 10 months’ imprisonment.