HKSAR v. Wang Huaifeng and Anotehr

DCCC 251/2019

[2019] HKDC 1266

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 251 OF 2019

-----------------------------------

-----------------------------------

----------------------------

Reasons for Sentence

----------------------------

Charge

1.D1 and D2 pleads guilty to a charge of theft by pickpocketing.  

Facts

2.The Defendants arrived in Hong Kong on 2nd February 2019.

3.At about 2102 hours on 6th February 2019, after the Lunar New Year Fireworks Display on the eve of the Second Day of the Lunar New Year, the Tsim Sha Tsui area was packed with pedestrians and the police were deployed for crowd control.

4.The Defendants were chatting whilst seated by the road outside a Sa Sa Cosmetic Company Limited store in Kowloon Hotel at Nos. 19-21 Nathan Road, Tsim Sha Tsui, in Hong Kong before they suddenly got up and followed closely behind two female Korean tourists.

5.They followed the Korean tourists as they walked towards the waterfront.  After crossing Middle Road and arriving at Nathan Road, outside the Peninsula Hotel in Tsim Sha Tsui, D1, with D2 by his side, suddenly got close to the right hand side of one of the Korean women ("V"), placed his hand near V's jacket pocket and took away a gold "Apple", iPhone XS.

6.PC23657 (PW1) immediately went forward to use his hands to catch D1.  D1 tried to push PW1's hand away and attempt to flee.  V did not notice what had happened and kept walking towards Salisbury Road.  At the same time, D2 was intercepted by PC6515 (PW2). 

7.PW1 took the iPhone XS to V, who was able to unlock the mobile phone.  V confirmed to PW1 that the iPhone XS belonged to her in English.  The value of the iPhone is HK$7,000.  

8.At 2110 hours on 6 February 2019, PW1 arrested D1 at Nathan Road outside Peninsula Hotel and PW2 arrested D2 at Nathan Road outside Peninsula Hotel.

9.The Defendants stole V’s iPhone XS.

Mitigation

10.The Defendants are Mainland citizens in their forties.  They have a clear record.   

11.My understanding is that where the act was well-orchestrated by a number of accomplices, heavy sentences shall be imposed (HKSAR v Chan Meimyee Carman [2010] 4 HKC 571).  Being a foreigner coming to commit the crime was another aggravating feature.  A guideline starting point of 12 – 15 months is warranted for a first time offender with no aggravating features in the case (HKSAR v Ngo Van Huy [2004] HKCA 282). 

12.Mr. Tam, counsel for D1, refers me to HKSAR v Tang Hong Sheng CACC 238/2005. Three defendants were each of a clear record and on a two-way permit arriving from the Mainland one day prior to the offence of pickpocketing.  Near the Kowloon Star Ferry Pier, one blocked the way of the victim, another held the victim’s handbag steady for the other to unzip it to steal the victim’s mobile phone.  The Court of Appeal approved the four aggravating factors identified by the sentencing judge, namely (1) the location being crowded; (2) joint enterprise by three; (3) international element; (4) the move being well-organised, well planned and quite professional.  After reviewing a number of authorities, the starting point of 2 years 6 months was affirmed.  

13.Mr. Kan, counsel for D2, refers me to HKSAR v Xiao Ping and 2 Others CACC 147/2012, a case of attempted theft.  There were 3 accomplices, who were tourists from the Mainland, attempted but failed to steal from a victim at a location which was not busy.  The move was considered not well-planned.  Whilst the international element was not referred to specifically, the Court of Appeal regarded that the proper starting point should be 21 months.  

Sentencing the Defendants

14.From a basic starting point of 15 months I work out the actual starting point.  For the usually crowded occasion, 3 months may well be adequate.  However, here was the Lunar New Year Fireworks Display, a remarkably crowded event where the police had to be deployed for crowd control.  I consider an extra 6 months appropriate.  For the joint enterprise, 3 months shall be added to the starting point.  For the international element, I consider such crime a most unconscionable way to repay the courtesy of Hong Kong for granting their visit.  I add another 3 months to the starting point.  It was a well-planned move, as seen from their having followed closely the two tourists from the waterfront, through Middle Road, to Nathan Road for some time before the theft.  I add 3 months to the starting point. 

15.The actual starting point is 30 months.  One-third off for the guilty plea, the sentence is 20 months.  I reduce it by 2 months further as the mobile phone was recovered, sparing all financial loss and personal privacy loss.  The sentence is 18 months for D1 and D2 alike.