HKSAR v. Jiang Zhongliang

DCCC 1104/2018

[2019] HKDC 780

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1104 OF 2018

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to a charge of theft.

2.On 2 September 2018, Japanese male Mr. SUGIMOTO (“PW1”) was in Hong Kong on a business trip.  At about 4:20 p.m. on the same day, PW1 exchanged cash of HK$8,000 at a currency exchange store at Chungking Mansions, Tsim Sha Tsui, Kowloon, in Hong Kong.  He then put the cash into his wallet, and put the wallet into his shoulder bag.

3.PW1 then left Chungking Mansions and walked to the nearby Hanyee Building situated at Nos. 19-21 Hankow Road, Tsim Sha Tsui, Kowloon.  While PW1 was waiting for the elevator at the lift lobby, Ground Floor of Hanyee Building, he found his shoulder bag unzipped with his wallet missing.  PW1 then saw 3 males, including the Defendant, running away.  PW1 yelled for help and gave chase.  PW1 was able to stop the Defendant while the other 2 males escaped.

4.PW1’s wallet was not recovered.  The stolen wallet was worth HK$1,800 and contained the following:-

(a) cash of HK$8,000;

(b) one Sony Bank VISA Card; and

(c) one Cathay Pacific Asia Miles card.

5.CCTV at Chungking Mansions and Hanyee Building captured that:-

(a) between 4:07 p.m. and 4:20 p.m. that day, the Defendant and the other 2 males were loitering on the ground floor of Chungking Mansions near a number of currency exchange stores. They spread out and stood at different locations. Sometimes they would enter the currency exchange stores and then left again;

(b) at about 4:20 p.m., just before PW1 was going to leave a currency exchange store, one of the males approached PW1 from behind him and started to walk closely behind PW1;

(c) at about 4:21 p.m., the Defendant and the other 2 males were walking together closely behind PW1 while PW1 was leaving Chungking Mansions;

(d) at about 4:21 p.m., PW1 left Chungking Mansions and approached a pedestrian crossing outside the building. The pedestrian light signal was “flashing green” and PW1 rushed to cross the pedestrian crossing. The Defendant and the 2 males then ran and crossed the pedestrian crossing together right after PW1;

(e) at about 4:21 p.m., PW1 entered the lift lobby, Ground Floor of Hanyee Building. The Defendant and the 2 males followed PW1 closely and also entered the lift lobby of Hanyee Building together;

(f) at about 4:21 p.m., PW1 was waiting for the elevator at the lift lobby of Hanyee Building. The Defendant and the 2 males were standing closely behind PW1. Then, one of the males opened the zip of PW1’s shoulder bag and took out PW1’s wallet therefrom. The Defendant and the other male were standing closely together behind PW1 and were watching the whole process;

(g) at about 4:22 p.m., the Defendant and the other 2 males dashed out from the lift lobby of Hanyee Building through a side door. They entered a cul-de-sac. They found out, then re-entered the lift lobby, and left through the main entrance of Hanyee Building. PW1 was chasing after them.

6.At all material times, the Defendant, together with two persons unknown, stole property belonging to PW1.

The Defendant’s personal background and mitigation

7.He is 58 years of age, a visitor from mainland China.  He entered Hong Kong on 30 August 2018 at 3:35 p.m. through Lo Wu Control Point on the strength of a China Two-way Permit.  He was allowed to stay in Hong Kong until 6 September 2018.  He has a clear record in Hong Kong.

8.The Defendant claims through his counsel Ms. Chong that he had come to Hong Kong for sightseeing and for shopping.  He later changes this claim by saying that he had done much sightseeing in Hong Kong.  As he did not like taking photos, there would be no photos to be seen on his mobile phone.  He had bought one can of milk powder for his 12-year-old daughter when he overheard another customer perchance asking the supermarket staff in a certain supermarket (the exact name he has now forgotten) what would be good for a child of the same age of his daughter.  He followed that customer to buy one for his daughter.  He had put the purchase and the receipt in his friend’s home where he stayed while in Hong Kong.  He does not want to disclose his friend’s address to court. 

9.Although I do not believe a shred of his claim, the prosecution has no strong evidence to indicate that he had a prior plan to come to Hong Kong to commit an offence.     

10.Ms. Chong in mitigation submits that the mode of operation was not sophisticated and no weapon or tool was used.  She accepts that there are 3 aggravating features, ie the location being a crowded one, joint enterprise with two others, and being a visitor committing an offence in Hong Kong.  She suggests adding 3 months on top of the basic starting point of 15 months for each aggravating feature, hence a starting point of 24 months.     

Sentencing considerations

11.In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal indicates 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.

12.Aggravating factors, each to the extent of a few months, include the location of the offence being a crowded one, acting in concert with others, coming to Hong Kong to commit the offence.  To illustrate this aspect, Ms. Chong refers me to HKSAR v Indra Irawan CACC 80/2014, HKSAR v Wong Chun-wai and 2 Others DCCC 67/2016 (a judgment in Chinese), HKSAR v Aviles Zenaida Soriano & 4 Others [2019] HKDC 602, HKSAR v Ho Ting-kwok & Another DCCC 366/2017 (a judgment in Chinese), and HKSAR v Chow Wai [2019] HKDC 531.   

13.In HKSAR v Tan Hong Sheng CACC 238/2005, the Court of Appeal approved a starting point of 2 years 6 months for 3 visitors from China who committed pickpocketing together the very next day after their arrival. 

Sentencing this Defendant

14.I agree with Ms. Chong that the mode of operation was not sophisticated and no weapon or tool was used.  I consider a starting point of 15 months as the victim suffered property loss of HK$8,000 cash and a wallet valued at HK$1,800 apart from a credit card.   The starting point is adjusted upwards by 3 months each for 3 aggravating factors: first, the location being a crowded one, secondly, joint enterprise with two others, and thirdly, his being a visitor committing an offence in Hong Kong.   The starting point is therefore 24 months.  I give one-third discount for the plea of guilty.  His sentence is 16 months.