HKSAR v. Chen Jibang and Another

DCCC 256/2020

[2020] HKDC 861

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 256 OF 2020

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REASONS FOR SENTENCE

1.The defendants, visitors from the Mainland, plead guilty to one joint charge of theft, contrary to section 9 of the Theft Ordinance[1].

2.Full particulars of the offence are set out in the facts admitted by the defendants today. 

3.In summary at about 1:50 a.m. on 11 January this year the police were patrolling along Observatory Road in Tsim Sha Tsui when they saw the defendants acting furtively.  The police therefore put the defendants under observation.

4.Shortly afterwards the police saw the defendants walk close to Mr Kwan who was sitting outside No. 8 Observatory Road drunk.  The defendants picked Mr Kwan up and carried him to an alley near 111-113 Chatham Road South.  The defendants searched Mr Kwan and took away his Samsung tablet and Samsung mobile phone, valued at HK$7,000.

5.When the defendants began to leave the police intercepted them and recovered from D1 the tablet and mobile phone.  Under caution D1 admitted stealing the tablet and the mobile phone together with D2. 

Mitigation

6.In passing sentence, I have carefully considered the oral and written submissions of Ms Wu on behalf of D1 and D2.

D1

7.D1, born in Anhui, Mainland China, is 43, single and lives alone after his girlfriend left him in June 2019.  In the same month the defendant sustained injuries to his left arm at work resulting in permanent disability.  D1 has been unable to work since that time but still supports his daughter and helps pay for the medical expenses of the father of his former girlfriend[2].

8.D1 says he came to Hong Kong to visit his friend but on arrival he was unable to contact his friend and instead rented a bed in a guesthouse with the intention of sightseeing before returning home to China[3].    

9.I have read D1’s mitigation letter in which he expresses his remorse and asks for a lenient sentence.  

D2

10.D2, born in Guangxi, Mainland China, is 35, single and lives alone.   Prior to his arrest D2 was working as a chef.   D2 says he came to Hong Kong to buy cough medicine for his elder sister’s children.  Having bought the medicine D2 planned to stay two to three days to shop for gifts for the Lunar New Year[4]. 

11.I have read D2’s mitigation letter in which he asks for mercy so he can be reunited with his family.  

12.Ms Wu is instructed that the defendants did not know each other and only met that night when eating at the same food stall in Tsim Sha Tsui.  Realising they were both visitors from the Mainland, travelling alone and unfamiliar with Hong Kong, they became friends and agreed to hang out together.  While walking to the Tsim Sha Tsui Promenade they saw the victim sitting on the ground drunk and out of momentary greed committed the offence[5].

13.I do not accept that this was momentary greed.  The commission of the offence required agreement between the two defendants, who apparently had only met that night, to move the victim to an area where they could search him without being observed. 

14.Ms Wu refers the court to pickpocket cases, in particular cases involving theft from persons who were drunk, where starting points of 12 months were adopted[6].  The defendants have been in custody since the arrest over eight months ago.  Ms Wu submits that the present case is not the most serious of its kind and asks for a sentence which would allow the immediate release of the defendants[7]. 

15.In my view this is not a pickpocket case.  The facts are very different to the cases cited by Ms Wu.  The defendants acting together took the victim to a rear alley where they searched him and took away his property.  I have, nevertheless, in determining the appropriate starting point borne in mind the guidelines set out in HKSAR v Ngo Van Huy where the Court of Appeal confirmed the guideline sentence for pickpocketing after trial is 12 to 15 months for a first time offender where there are no aggravating features[8]. 

16.Further, in my view, the cases cited by Ms Wu appear to have failed to give sufficient weight to various factors, including cases where the theft was of a mobile phone; the theft was by more than one culprit and where the theft was by visitors. 

17.In HKSAR v Liu Lin Feng the Court of Appeal held that a starting point  of 15 months’ imprisonment (within the guideline range of 12-15 months) was appropriate for theft of a mobile phone[9], the same starting point as in Ngo Van Huy, which also involved theft of a mobile phone.

18.In HKSAR v Ngo Van Huy the Court of Appeal said if the offence is committed in conjunction with another, the sentence should be higher.

19.In HKSAR v Aguilar Garcia Milner Javier the Court of Appeal said that the fact that the applicant was a visitor to Hong Kong was a factor to which the judge was entitled to have regard, as being in aggravation of the commission of the offence and where the offender entered Hong Kong to commit crime that was much more serious aggravation[10].

20.Mr Chan informs the court that both defendants entered Hong Kong on 9 January. The theft was committed two days later on 11 January.  There is however no evidence the defendants came to Hong Kong together.   In the circumstances I am prepared to accept that the defendants did not enter Hong Kong to commit crime.

21.Taking into account that the theft was from a drunken male who was taken to an alley to be searched; a tablet and mobile phone valued at $7,000 were stolen and that the offence was committed jointly by the defendants who are both visitors from the Mainland, I am satisfied a starting point after trial of 2 years’ imprisonment is appropriate.  Giving the defendants full credit for their pleas of guilty they are both convicted and sentenced to1 year and 4 months’ imprisonment.

22.I would add that if the case was properly to be classified as a pickpocket case, I would have taken a starting point after trial of 15 months’ imprisonment for the theft of the tablet and mobile phone and enhanced the starting point by 9 months for the aggravating features.