HKSAR v. Chan Fei Lung

DCCC 1118/2020

[2021] HKDC 614

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1118 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.Defendant is convicted on his own plea and agreement to amended Summary of Facts to a charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

Facts

2.On 24 September 2020, WPC22230 (PW2) was on duty in plainclothes at Tai Nan Street, Sham Shui Po.  She saw the defendant and another acting furtively inside Pei Ho Street Market.  She noticed that they were focusing on people carrying handbags and they talked to each other during that time.

3.PW2 observed the defendant and another walking close behind a female (PW1, the victim) aged 73 outside a seafood stall.  They were seen standing behind PW1’s both sides and swapping positions from time to time.  The defendant stared at the left front trouser pocket of PW1 and then looked around and talked to another person.  He then suddenly approached PW1 closely on PW1’s left side and used his right hand to take away an object from PW1’s left front pocket.  He then walked away towards the exit. 

4.PW2 and another police officer then intercepted the defendant outside Pei Ho Street Market.  Upon search on the defendant, a wallet containing cash of $353.40, 7 keys, one elderly Octopus card, one 759 Store membership card, one ParknShop membership card and one piece of paper bearing PW1’s telephone number were found.  PW1 then later confirmed the wallet and the items were hers. 

5.Under caution at the scene, the defendant admitted committing the offence and stated that he committed the offence because he has no money and he asked for a chance. 

Criminal record

6.Defendant has 31 previous records involving convictions of 38 charges out of which 25 of them were theft or attempted-theft-related and 14 of them were pickpocketing offences. 

Mitigation

7.Defendant is aged 60, divorced with two adult children.  He was born in mainland and came to Hong Kong in 1978.  He received education up to Primary 5 in mainland and he lives with his daughters in a public housing estate.  He was previously a decoration worker but at the time of arrest, he was unemployed and received $2,000 on CSSA per month for a living. 

8.It was said that he had received an operation in 2019.  He had to therefore take a rest after the surgery and he is still receiving regular medical treatment up till this moment. 

9.Defence counsel submitted that defendant committed the present offence only due to economic reasons.  He cited the case of HKSAR v Dang Van Tuan [2010] 1 HKLRD 330 where it was said that the court adopted 15 months’ imprisonment as being the sentencing starting point for a persistent offender in pickpocketing.

10.It was also said that the value of the goods stolen was of relatively low value and they were all recovered. 

11.Defence counsel conceded that the defendant is a persistent offender and the sentencing starting point would be aggravated.  He also urged this court to give defendant sentencing discount by reason of his guilty plea and co-operation with police upon apprehension. 

12.Defence counsel also asked this court to consider the totality principle in sentencing as defendant was sentenced previously for similar offences in January this year in the case of DCCC 397/2020. 

Discussion

13.Any person on conviction upon indictment of this charge is liable to imprisonment for 10 years.

14.This court has carefully considered all that was said on behalf of the defendant in mitigation. 

15.Defendant here is clearly what is described as an incorrigible recidivist pickpocketer.  Although value of goods involved was relatively small, this court noted that the defendant repeatedly committed pickpocketing offence in busy market preying on elderly citizens, which is clearly a menace and a threat to society.  It is clear that the sentence imposed on him in the past has not been able to deter him from further reoffending. 

16.In the case of HKSAR v Ng Ah Shan, CACC 358/2013, the Court of Appeal affirmed the sentencing starting point of 15 months for a pickpocketing recidivist who acted alone and enhanced the same by 9 months because of the added culpability arising from the poor criminal record.

17.In the case here, the defendant acted in concert with another person. This is an aggravating factor for which the sentencing starting point is further enhanced to 29 months. 

18.As pointed out by the prosecution, defendant here committed the offence whilst he was on court bail for similar offences in DCCC 397/2020.  This demonstrates defendant’s total disregard for the law, which again constitutes another aggravating factor for which the sentencing starting point is further enhanced by 4 months to 33 months’ imprisonment. 

19.Defendant has pleaded guilty and is therefore entitled to full one-third sentencing discount.  He is therefore sentenced to 22 months’ imprisonment. This is the only valid mitigating factor in this case. 

20.Defence counsel asked this court to consider also the totality principle. He submitted that defendant committed the offence in the case DCCC 397/2020 a few months before the present offence.  This court noted that in that case defendant committed 2 offences on 8 February 2020 whilst the present offence was committed on 24 September 2020.  The present offence was committed 7 months apart from the other offences and had been directed against different victims at different locations.  The modus operandi of the defendant was the same, preying on the elderly in a busy wet market. 

21.Considering the totality principle, this court is now ordering that 7 months’ imprisonment in present case is to run concurrent to the sentence in DCCC 397/2020 and the rest to run consecutive to the sentence in that case.