HKSAR v. Shen Chengyi and Another

DCCC 136/2019

[2019] HKDC 1072

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 136 OF 2019

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REASONS FOR SENTENCE

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1.The defendants pleaded guilty to one joint charge of attempted theft[1].

Summary of facts

2.At around 9:18 pm on 24 December 2018, D1 and D2 were noticed by a patrolling Police officer staring at the belongings of pedestrians.  They were then seen following one particular pedestrian, a Mr Li.

3.D2 positioned himself behind Mr Li and pointed at his shoulder bag.  D1 was then seen to unzip the bag from behind and reached inside for 3 to 4 seconds.

4.D1 then took out his hand and inserted two fingers into the outer pocket of the bag.  He took out his fingers without taking anything.  Nothing was stolen from Mr Li’s bag.

5.D1 and D2 were then arrested for attempted theft.

6.Upon investigation, it was revealed that the defendants are both two-way permit holders from mainland China and had entered Hong Kong at 10:21am that same day.

Previous convictions

7.Both the defendants are of previously clear record in Hong Kong.

Mitigation

D1

8.D1 is 58 and is from Liaoning Province (遼寧省).  He is married and is the father of a 17-year-old son.  D1’s parents have passed away.

9.D1 is educated up to secondary level and was working as a delivery truck worker in the 1990s.  He was made redundant after the factory closed.  D1 had not been able to find work since and was living on the earnings of his wife who works as a part-time nanny, as well as financial assistance from her family.

10.D1 suffers from hypertension, diabetes and fracture of skull.  His wife has hereditary mental illness with regular migraine and vomiting.  Both are on long term pain killing medications.

11.According to his legal representative’s submissions in mitigation, the defendants are from the same hometown in Liaoning.  D2’s son lives in Shenzhen and had introduced D1 to interview for a job there as a security officer.  D1 did not get the job.  The two then decided to come to Hong Kong for short term sight-seeing.  They were to return to Liaoning the same evening that they were arrested.

12.I was told that it took some 3 days and two nights for D1 to travel from Liaoning to Shenzhen.  He said he arrived in Shenzhen at 4 am on 24 December and had the job interview at 8 am.  By 10:21 am he and D2 were both entering Hong Kong at the border.

13.It is D1’s claim that he only decided to steal when they were at scene out of momentary greed.

D2

14.D2 is 66 years old and born in Liaoning Province.  He was diagnosed with polio when he was 3 years old.  He retired from running a restaurant in 2013 and is living with his present wife, relying on a retirement pension of about RMB$1,000 per month.  They have a 45-year-old son who works in Shenzhen.

15.D2’s retirement pension is meagre and barely enough for living.  Out of greed and for financial reasons, he committed the present offence.

16.Counsel for D2 told the court that the defendants came to Hong Kong from Shenzhen to admire the Christmas lightings.  They had the intention to commit the offence only at the time of the offence.

17.I was told that D2 did not travel with D1 but it had also taken him 3 days and 2 nights to arrive in Sheznzhen by train on 23 December.  When in Hong Kong, he went to Tsim Sha Tsui and Mongkok area and lingered there for the 11 odd hours he was in Hong Kong.

18.D2 had converted to Christianity after his present remand and is truly remorseful of his misdeed.

Sentencing considerations

19.The maximum sentence for theft, and hence attempted theft, on conviction upon indictment is that of 10 years’ imprisonment.

20.For theft by pickpocketing, according to the case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the guideline sentence for a first offender is an immediate custodial sentence of 12 to 15 months’ imprisonment after trial.

21.I find that the general circumstances of the attempted theft in the present case puts it at the lower range of seriousness, subject to consideration of other aggravating features.  I will adopt a starting point of 12 months’ imprisonment for both the defendants.

22.This starting point is subject to increase upon the presence of aggravating features.  Such features include where the offence is committed in a place in which the public is at particular risk, such as crowded shopping areas where the pedestrian traffic is heavy, and where the offence was committed in conjunction with another.  Both of these features are present in the defendants’ case.

23.Counsel for D2 submitted that although the offence took place at a crowded area, there is no evidence that the defendants had taken advantage of the crowded conditions in the attempted theft and therefore it did not amount to an aggravating feature.

24.For the following reasons, I am unable to accept this submission.

25.First of all, the fact that the pickpocketing was committed in a crowded place itself was identified as an aggravating feature in Ngo Van Huy.  There is no added requirement that the pickpockets must have taken advantage of the crowded condition before it can be considered as an aggravating factor.

26.Moreover, a crowded place means that there were more targets for the defendants to choose from.  It would also be easier for them to pickpocket without being noticed since there would be a legitimate reason for them to be in close proximity to another person, as opposed to an open space with just the target and the pickpockets around, when their approach would immediately cause alarm.

27.Therefore, by choosing a crowded place to commit the pickpocketing, the defendants had already taken advantage of the crowded condition.

28.For each of these two aggravating features, I will add 3 months’ imprisonment to the starting point, making a total of an additional 6 months being added to the starting point. 

29.A further aggravating feature in the present case is the fact that the defendants had come to Hong Kong specifically to commit the present offence.

30.According to their own mitigations, both D1 and D2 were in financial difficulties.  D1 had just failed to get a job in Shenzhen.  Liaoning Province is located in the north of China, bordering with North Korea.  D1 travelled all the way from Liaoning to Shenzhen for the interview.  Having failed to get the job, he decided to spend more money and came to Hong Kong for sightseeing.  It was supposed to be a daytrip.  Yet, by 9:18 pm the two of them were still on the streets of Hong Kong in Tsim Sha Tsui.  They were supposed to be traveling back to Liaoning the same night.

31.The defendants committed the present offence just 11 hours after their entry into Hong Kong.  I do not accept the suggestion that they had come to Hong Kong for sightseeing given the dire financial state they were in and how they had just lingered in the Tsim Sha Tsui or Mongkok area for the 11 hours that they were in Hong Kong.

32.I find that it is an only reasonable inference that they had come to Hong Kong intending to commit the offence.

33.For this aggravating feature, I will add a further 3 months’ imprisonment to the starting point, taking the total increment to 9 months’ imprisonment.

34.The sentence after taking into account the various aggravating features is, therefore, 21 months’ imprisonment for each of the defendants.

Mitigating factors

35.I understand the hard life that the defendants and their family may lead in mainland China.  However, having heard from counsel, I find that there are no mitigating factors that would warrant a further discount that is not subsumed in the one-third discount granted upon their timely pleas of guilty.

36.The final sentence for each of the two defendants is, therefore, 14 months’ imprisonment after plea.