HKSAR v. Zhang Yang

DCCC 213/2020

[2020] HKDC 806

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 213 OF 2020

____________

____________

REASONS FOR SENTENCE

The defendant pleaded guilty to 5 offences of "Theft" (Charges 1 to 5) and 1 offence of "Attempted theft" (Charge 6). He used tricks to distract bike riders and stole their properties placed on the bicycle baskets.

Summary of Facts

2.The modus operandi of Charges 1, 3, 4, 5 and 6 is identical.  The defendant threw a rope or similar object at the rear wheel of a passing-by bicycle, causing the rider to stop to clear the jam.  He then rode a bicycle and quickly snatched the rucksack or bag placed in the front basket of the victim's bicycle.

Charge 1

3.About 7:15 p.m. on 22 November 2019, Madam Yu (PW1) was riding a bicycle along Tai Wo Road outside Yat Wo House (Block A), Po Nga Court, Tai Po.  She had placed her rucksack in the front basket of her bike.  Suddenly, PW1 felt the rear wheel being jammed by a rope.  She got off her bike and tried to clear the jam.  In the process, PW1 heard some noise from the front basket.  She looked up and found her rucksack missing.  She also saw a middle-aged male riding a bicycle at high speed.  She chased after that man but without success.  PW1's rucksack contained a blue-dotted bag as well as the properties listed in the charge (valued at approximately $7,850 in total).

Charge 3

4.About 6:15 p.m. on 3 December 2019, Madam Liu (PW2) was riding a bicycle at Fan Leng Lau Road outside Wing Fok Centre, Fanling.  She had placed her shoulder bag in the front basket of her bike.  Suddenly, her bike could not move forward.  PW2 got off her bike and found the rear wheel being jammed by a rope.  After spending about 2 minutes on removing the rope, PW2 discovered her shoulder bag missing.  PW2's shoulder bag contained the properties listed in the charge (valued at approximately $3,700 in total).

Charge 4

5.About 6:30 p.m. on 8 December 2019, Madam Chen (PW3) was riding a bicycle along Sha Tau Kok Road―Lung Yeuk Tau near Lamppost No. EB7171, Sheung Shui.  She had placed her bag in the front basket of her bike.  Suddenly, she felt something wrong with her bike.  PW3 got off her bike and found the rear wheel being jammed by a piece of cloth.  A passer-by helped her remove the piece of cloth.  A bicycle then went past them.  PW3 looked up and found her bag missing.  PW3's bag contained the properties listed in the charge (valued at approximately $7,200 in total).

Charge 5

6.About 6:15 p.m. on 10 December 2019, Madam Leung (PW4) was riding a bicycle near the bus stop at Ma Sik Road outside Noble Hill, Sheung Shui.  She had placed her shopping bag in the front basket of her bike.  Suddenly, she felt something wrong with her bike.  PW4 got off her bike and found the rear wheel being jammed by a rope.  After spending about 10 minutes on removing the rope, PW4 decided to push her bike home.  She then found her shopping bag missing.  PW4's shopping bag contained the properties listed in the charge (valued at approximately $4,200 in total).

Charge 6

7.About 6:35 p.m. on 10 December 2019, Sgt 48883 (PW6) was on duty near the junction between Tin Ping Lane and Jockey Club Road in Sheung Shui.  He saw the defendant and another man each riding a bicycle.  The front basket of the bike ridden by the defendant contained a blue bag.  PW6 noticed that the defendant and the other male were paying particular attention to lone female bikers who had a basket attached to their bikes.

8.A few minutes later, the defendant was seen riding a bicycle along Jockey Club Road (towards Tin Ping Lane).  He was following a female biker wearing a red top. PW6 saw the defendant taking out a rope-like object from the basket of his bike and throwing it towards the rear wheel of that female's bike.  The female stopped her bike afterwards.  PW6 intercepted the defendant.  Upon search, 18 ropes and other items were found on the defendant as well as the bicycle he was riding.

9.Amongst the items found on the defendant, a blue-dotted bag, a mobile phone and an Octopus card were subsequently identified by PW1 to PW3 as their respective properties.

Admissions

10.In his cautioned interviews, the defendant admitted that on 3 December 2019, he took an unlocked bicycle which did not belong to him near Sheung Shui MTR Station. This is Charge 2.  He also admitted that he committed the offences in Charges 1, 3, 4 and 5 as described in the preceding paragraphs.  He claimed that he had spent all the cash stolen and threw away other items.  He has kept one of the stolen mobile phones and sold the rest in the mainland.

Mitigation & Sentence

11.The defendant is 39 and has a clear record. Defence counsel Mr. Cheung informed me that the defendant is a mainlander residing in Shenzhen alone. He is deaf, unable to speak and illiterate; he can only communicate in sign language.

12.In mitigation, Mr. Cheung stated that the defendant had no work in the mainland; he relied on borrowings from friends. Mr. Cheung submitted that the defendant committed the present offences alone. He did not use any weapons or cause any physical injuries to the victims. He simply created a distraction and stole the bag or rucksack from the bicycle basket. Furthermore, there is no evidence showing that the crime scenes were crowded public places.

13.Mr. Cheung and prosecuting counsel Ms. Remedios both accepted that the nature of this case is pickpocketing. I have borne in mind the relevant sentencing authorities[1].

14.With the consent of Mr. Cheung, Ms. Remedios has placed before me the defendant's Movement Records. On the dates of the offences, the defendant came in and out of Hong Kong within 24 hours. Based on his immigration records and the lack of cogent explanation for visiting Hong Kong, I have no difficulty in finding that the sole purpose of the defendant coming to Hong Kong was to look for ways to obtain financial gain by illegal means, which is "a most serious aggravating factor" according to the Court of Appeal[2].

15.The defendant has admitted that he had brought with him the ropes from Shenzhen to Hong Kong. In other words, he came prepared and with a concrete plan targeting at female bikers riding alone. I have not a single doubt that each time the defendant waited for and selected his target. Each stealing was well planned and skilfully executed, which is also an aggravating factor.

16.For Charges 1, 3, 4, 5 and 6, I adopt a starting point of 12 months' imprisonment each. I will enhance it by 6 months for the 2 aggravating factors mentioned above. Hence, the ultimate starting point for each charge is 18 months' imprisonment. With the timely guilty pleas, I sentence the defendant to 12 months' imprisonment for each charge.

17.For Charge 2, I adopt a starting point of 6 months' imprisonment. With the timely guilty plea, I sentence the defendant to 4 months' imprisonment.

18.Bearing in mind the totality principle, I consider a global starting point of 30 months' imprisonment appropriate for all 6 charges. With the timely guilty pleas, the overall sentence is reduced to 20 months. To achieve this, I order the sentences to run in the following manner :-

(i) Charges 5 and 6 concurrent;

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

(iii) 2 months in Charge 2 consecutive to Charges 1, 5 and 6;

(iv) 2 months in Charge 3 consecutive to Charges 1, 2, 5 and 6; and

(v) 2 months in Charge 4 consecutive to Charges 1, 2, 3, 5 and 6.