HKSAR v. Su Quanwen and Another

DCCC 103/2020

[2020] HKDC 585

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 103 OF 2020

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REASONS FOR SENTENCE

1.D1 and D2 are jointly charged with 1 offence of "Theft" (Charge 1); whereas D1 alone faces 1 charge of "Theft" (Charge 5) and 1 charge of "Breach of condition of stay[1]" (Charge 6), and D2 alone faces 3 charges of "Theft" (Charges 2 to 4).

2.D1 and D2 pleaded guilty to their respective charges.  Charges 1 to 4 are related to pickpocketing; whereas Charge 5, theft by finding.

Summary of Facts

Charge 1

3.About 5:10 p.m. on 30 December 2019, PC 14614 (PW1) spotted 2 males (later identified as D1 and D2) walking together at an expo held at the Victoria Park ("the Expo") and decided to follow them.

4.After wandering at the expo for a while, D1 and D2 were seen boarding a tram heading towards Wanchai. During the tram ride, they kept staring at the handbags and properties of other passengers.

5.About 6:00 p.m. on the same day, D1 and D2 arrived at Wanchai MTR Station.  At Platform No.1, D2 pointed at a civilian (later confirmed to be Mr. Quan) who was walking with the aid of his female partner.  D1 and D2 then approached Mr. Quan.  D1 stood on Mr. Quan's left and kept staring at Mr. Quan's left trouser pocket; whereas D2 stood on the right side of Mr. Quan's partner.  When the incoming train arrived at Platform No.1 and the doors were opened, D2 suddenly rushed to the front of Mr. Quan's partner to block her way.  At the same time, D1 inserted his hand into Mr. Quan's left trouser pocket and took his wallet ("the Wallet"). D1 then put the wallet into the inner portion of his own vest.

6.At this moment, PW1 and his colleagues intercepted D1 and D2.  D1 immediately dropped the Wallet on the ground.  PW1 and his colleagues recovered the Wallet, which is of the "Gucci" brand (valued at $3,000).  It contained cash in a total sum of $3,400, Mr. Quan's name cards and other items.

Charges 2, 3, 4 and 5

7.Upon search, 1 "Huawei" mobile phone (valued at $6,800), 1 iPhone (valued at $6,500) and 1 "Xiaomi" mobile phone (valued at $1,780) were found in D2's rucksack.  All 3 phones are respectively the stolen properties particularized in Charges 2 to 4.

8.Inside D1's wallet, 4 Elderly Octopus Cards and 1 Adult Octopus Card were found.  They do not belong to D1 and are the stolen properties particularized in Charge 5.

9.The respective owners of the 3 stolen mobile phones confirmed that around 3:30 p.m. on 30 December 2019 at the Expo, they found their phones missing.  Regrettably, the owners of the 5 Octopus Cards found on D1 could not be traced.

Admissions

10.Under caution, D1 admitted that he committed the offence in Charge 1 to make a living.  Regarding Charge 5, he claimed that he picked up the 5 Octopus Cards in Wanchai about a month ago, but was unable to recall the exact details.

11.Regarding Charge 6, D1 admitted that he had overstayed in Hong Kong.  According to immigration records, D1 arrived at Hong Kong on 24 October 2019 and was permitted to stay in Hong Kong as a visitor for 7 days until 31 October 2019.

12.On the other hand, D2 arrived at Hong Kong on 25 December 2019 and was permitted to stay in Hong Kong as a visitor for 7 days.

Mitigation

D1

13.He is 47 and has a clear record.  His counsel Mr. Lam informed me that D1 is a farmer and a part-time truck driver in the mainland.  He overstayed in Hong Kong for about 2 months.  His mother (aged 75) has recently undergone surgery.

14.In mitigation, Mr. Lam accepted that for Charge 1, the crime was committed in a crowded place and by 2 culprits; however, no weapons or tools were used and the 2 defendants were not part of an organized and professional gang of thieves.  Regarding Charge 5, Mr. Lam submitted that there is no evidence suggesting pickpocketing and asked this court to treat it as theft by finding.

D2

15.He is 47 and has a clear record.  His counsel Mr. Wu informed me that D2 is a sales person of construction materials in the mainland with a monthly income of RMB 3,000 to 20,000.  He is the sole bread winner of his family.  D2 has problems with his lungs; his wife also suffers from long-term illness and his son is a tertiary student.

14. In mitigation, Mr. Wu accepted that both the Expo and Wanchai MTR Station were crowded places; however, no tools were used and the stolen properties in Charges 1 to 4 were all recovered. D2 did not know D1 before; they just met at the Expo. D2 saw the waist bags of the victims being left open, he committed the crimes out of momentary greed.

Sentence

15. The nature of Charges 1 to 4 appears to be pickpocketing simpliciter. Defence counsel accepted that both the Expo and Wanchai MTR Station were crowded places at the time of the respective offences. D1 and D2 acted in concert when committing the offence in Charge 1.

16.Based on their immigration status and the lack of cogent explanation for visiting Hong Kong, I have no difficulty in finding that the sole purpose of D1 and D2 coming to Hong Kong is to look for ways to obtain financial gain by illegal means.

17.I have borne in mind the relevant sentencing authorities[2]. For Charge 1, I adopt a starting point of 12 months' imprisonment. I will enhance it by 3 months since D1 and D2 acted in concert. I will further enhance the starting point by 3 months for committing the offence in a crowded public place. Hence, the ultimate starting point for Charge 1 is 18 months' imprisonment. With their timely guilty pleas, I sentence D1 and D2 each to 12 months' imprisonment for this charge.

18.For Charges 2 to 4, I adopt a starting point of 15 months' imprisonment each based on similar reasons. With his timely guilty pleas, I sentence D2 to 10 months' imprisonment for each charge.

19.For Charge 5, I consider a starting point of 6 months' imprisonment appropriate for "theft by finding". With his timely guilty plea, I sentence D1 to 4 months' imprisonment for this charge.

20.For Charge 6, I consider a starting point of 9 days' imprisonment appropriate for having overstayed for 2 months. With his timely guilty plea, I sentence D1 to 6 days' imprisonment for this charge.

Overall Sentence

21.D1 is sentenced to 12 months', 4 months' and 6 days' imprisonment respectively for Charges 1, 5 and 6. Bearing in mind the totality principle, I consider a global starting point of 21 months' imprisonment appropriate. With his timely guilty pleas, the overall sentence is reduced to 14 months. Apart from this, I see no other mitigating factors which warrant any further reduction. To achieve this, I order the sentences to run in the following manner :-

(i) Charges 5 and 6 concurrent; and

(ii) 2 months in Charges 5 and 6 consecutive to Charge 1.

22.D2 is sentenced to 12 months', 10 months', 10 months' and 10 months' imprisonment respectively for Charges 1 to 4. Bearing in mind the totality principle, I consider a global starting point of 30 months' imprisonment appropriate. With his timely guilty pleas, the overall sentence is reduced to 20 months. Apart from this, I see no other mitigating factors which warrant any further reduction. To achieve this, I order the sentences to run in the following manner :-

(i) Charges 2 to 4 concurrent; and

(ii) 8 months in Charges 2 to 4 consecutive to Charge 1.