HKSAR v. Leung Chak Lam

DCCC 436/2019

[2019] HKDC 1560

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 436 OF 2019

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

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

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

Reasons for Sentence

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

Charge

1.D pleads guilty to charge of theft.  This is a case of pickpocketing. 

Facts

2.On 7 April 2019 at 12:37 p.m., PW2 (plain-clothes police officer) saw D staring at other passenger’s personal belonging inside a MTR train.  PW2 started to put D under close observation. 

3.D was seen getting on a train at Mong Kok station and approached PW1 from behind inside the train compartment.  PW2 saw D covered his hand with a newspaper, and took a wallet from a recycle bag carried by PW1.  D then left the train at Prince Edward station.

4.PW3 then took over the observation.  After arriving at Prince Edward station, PW3 saw D taking out some cash from the wallet and then threw it into a rubbish bin.  D was arrested immediately and PW3 retrieved the wallet from the rubbish bin. 

5.PW1 confirmed the wallet to be her stolen property, which included one Hong Kong Identity Card, cash of Rp105,000 Indonesia Rupiah, cash of $40 Hong Kong currency, one working card, one bank card, one membership card, one library card, two student cards and some papers.

6.D admitted upon caution that he had stolen the wallet from PW1 inside the MTR train.  The admission was post-recorded in a written record of interview signed by D.

7.D committed the present offence while on court bail for another case of theft.

Mitigation

8.D is 60 years old.  He had many criminal records.  Precisely for theft were 12 records up to May 2019.  Apart from that, there were also robberies and burglaries under his name. 

9.His solicitor Mr. Shin now raises the proposition to have part of the present term of sentence run concurrently with his pre-existing sentence of 12 months imposed on 7 May 2019 for attempted theft by pickpocketing in WKCC/353/2019.

Sentencing considerations

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

(1) The offence being 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 D in present case

11.As a basic starting point, I adopt 15 months.  There are two aggravating factors.  The first is the offence taking place in the MTR during rush hours.  The second is D being a persistent offender for theft.  The actual starting point is therefore 21 months.  After a one-third discount for the plea of guilty, the sentence is 14 months. 

Considerations of total sentence relating to WKCC/353/2019

12.As a separate note, I am asked to order a partly concurrent sentence here with WKCC/353/2019.  In WKCC/353/2019, D was charged with attempted theft by pickpocketing at the exit of Mong Kok MTR Station on 23 December 2018.  He was seen to have stood behind a female on the escalator going up and used an umbrella to cover up his hand when opening the zip of the female’s backpack to attempt to steal from inside.  He pleaded not guilty on 3 April 2019 in Court 1 of West Kowloon Magistrates’ Courts.  The case was adjourned to 15 May 2019 for trial with bail granted.  During the remand and despite his bail, he committed the present offence on 7 April 2019 on the MTR train between Mong Kok Station and Prince Edward Station.  On 7 May 2019, he pleaded guilty to the attempted theft in WKCC/353/2019 and received on the same day a sentence of 12 months.

13.It is suggested in mitigation that if D had pleaded guilty to, and sentenced for, both that case and our present case together, he ought to have had a partly concurrent sentence based on totality.  I accept that this proposition is generally true but not applicable here.  D had committed the present offence whilst on bail in WKCC/353/2019 for precisely the same offence and mode of operation.  The aggravating factor of committing the present offence whilst on bail only for 4 days in WKCC/353/2019 has to offset the call here for a partly concurrent sentence based on totality.  To this end, I will neither increase the present sentence due to such aggravating factor nor order any partly concurrent sentences between the present and the previous cases. 

14.In short, the present sentence shall be consecutive to WKCC/353/2019.