HKSAR v. Wu Chung Keung

DCCC 565/2020

[2020] HKDC 1176

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 565 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to two charges of theft, contrary to section 9 of the Theft Ordinance[1].

2.Full particulars of the offences are set out in the summary of facts admitted by the defendant today.  In summary on two different days in April this year the defendant stole the mobile phones of two different victims who were shopping in the PARKnSHOP Superstore in Cheung Fat Estate, Tsing Yi (“the superstore”).

Charge 1

3.At about 11:15 a.m. on 11 April 2020, Ms Li was shopping in the superstore when she placed her mobile phone, valued at $4,000, on the shopping trolley unattended while she selected goods from the shelf.

4.About a minute later Ms Li found her mobile phone was missing and reported the case to the police.

5.CCTV captured the defendant stealing the mobile phone.   

Charge 3

6.At about 10:15 a.m. on 17 April 2020, Ms Yip was shopping in the superstore.  Ms Yip placed her handbag inside which was her mobile phone, valued at $2,500, on the shopping trolley.  

7.About fifteen minutes later Ms Yip found her mobile phone was missing and reported the case to the police.

8.CCTV captured the defendant stealing the mobile phone.   

Arrest

9.At about 10:20 the same morning PC 9902 saw the defendant, who resembled the appearance of the thief seen in the CCTV footage of the first theft, wandering around the superstore.  PC 9902 followed the defendant.  The defendant was eventually intercepted and arrested.  The defendant was found in possession of Ms Yip’s mobile phone.  

10.In a house search at the defendant’s residence the police seized the clothes worn by the defendant when committing the thefts.

11.Under caution and in a subsequent video recorded interview the defendant, inter alia, admitted stealing the mobile phones because he was unemployed, not entitled to CSSA and had no money for food.  The defendant said he sold the mobile phone stolen on 11 April for $300 which he used to buy food.

Mitigation

12.In passing sentence, I have carefully considered the oral and written submissions of Mr Lee, including that the defendant, who is 64, and divorced, was financially desperate due to his difficulty in finding work because of his age and criminal record[2].

Guidelines

13.Mr Lee urges the court to draw a distinction between taking unattended property from a shopping trolley as opposed to stealing from the person[3].

14.In HKSAR v Ng Ah Shan the Court of Appeal in rejecting a similar argument said where the defendant acts with premeditation and deliberately takes advantage of the victim’s negligence to steal property placed next to the victim, there is no difference between such a theft offence and the offence of pickpocketing and in terms of gravity falls squarely within that emphasized in HKSAR v Ngo Van Huy[4].

15.Mr Lee whilst categorising the offences as opportunistic states that obviously there was a design on the defendant’s mind to take advantage of shoppers who may be distracted while shopping.  

16.The defendant was clearly targeting shoppers in the superstore, consciously preying on the negligence of the victims to steal their belongings.  Charge 3 also required a degree of skill to remove the mobile phone from the handbag of Ms Yip.  I am satisfied the offences committed by the defendant also fall squarely within the guidelines for pickpocketing laid down in HKSAR v Ngo Van Huy[5].

17.In HKSAR v Ngo Van Huy the Court of Appeal confirmed the guideline sentence for pickpocketing after trial is 12 to 15 months imprisonment for a first offender, where there are no aggravating features[6].  In passing sentence I have also considered the cases referred to by Mr Lee[7].

18.In determining where in the range of 12 to 15 months a sentencing court should commence will depend on the facts of the case including the circumstances of the theft; the value of the property stolen; the age or vulnerability of the victim and the expertise used in the theft. 

19.In HKSAR v Liu Lin Feng the Court of Appeal held that a starting point  of 15 months’ imprisonment was appropriate for theft of a mobile phone[8], the same starting point as in Ngo Van Huy, which also involved theft of a mobile phone.

20.I am satisfied a starting point after trial of 15 months’ imprisonment is appropriate for each charge. 

21.The fact an accused is a persistent offender is an aggravating feature.  The defendant has appeared in court on 23 occasions amassing a total of 27 convictions with 20 for offences of dishonesty, 10 specifically stated to be pickpocketing. The defendant last appeared in court on 27 March 2019 when he was sentenced to 8 months’ imprisonment for pickpocketing. 

22.Mr Lee asks the court to note that between 2001 and 2014 the defendant only committed one offence of theft in 2009[9].  Thereafter the defendant committed two offences of theft in 2014, two offences in 2017 and the last offence in 2019. 

23.By reason of the defendant’s persistent offending I am satisfied the starting point on each charge is to be enhanced by 6 months to 21 months’ imprisonment.  Giving the defendant full credit for his plea of guilty reduces the sentence on each charge to 1 year and 2 months’ imprisonment.

Totality

24.The two offences are separate and distinct, committed on different days involving different victims.  Consecutive sentences are appropriate subject to totality. Taking into account all the circumstances of the two offences, I am satisfied a total sentence of 1 year and 8 months’ imprisonment properly reflects the defendant’s criminality on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[10].

Sentence

25.The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 2 months’ imprisonment; and

Charge 3 – 1 year and 2 months’ imprisonment with 6 months consecutive and 8 months concurrent to charge 1.

The total sentence to be served by the defendant is 1 year and 8 months’ imprisonment.