HKSAR v. Leung Kim Bor

DCCC 230/2021

[2021] HKDC 848

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 230 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant pleaded guilty to one charge of theft (pickpocketing), contrary to section 9 of the Theft Ordinance Cap 210.

Admitted facts

2.On 10 January 2021, plainclothes police officers including PC13568 (PW1)  and PC12066 (PW3)  were on duty at the platform of Prince Edward MTR Station.

3.At around 1858 hours, PW2 spotted the defendant acting furtively and immediately informed his superior.  PW2’s superior then deployed PW3 to assist. PW2 saw the defendant following a male, later known as Cheung Kong Ting (PW1)  into a train.  On the train, PW2 was about one meter away from the defendant to keep observation.  At that time, there was sufficient lighting and PW2’s vision was unobstructed.  PW2 saw the defendant approach and stood close to PW1’s left side.  The defendant took away an object from PW1’s left front jacket pocket and then rushed out of the train.  PW3, who was also on the train, immediately alighted and followed the defendant.  After being informed by PW2 that PW1’s wallet was missing, PW3 intercepted the defendant on the MTR station platform.

4.Upon search, a black wallet was found inside the defendant’s front trousers pocket.  The black wallet contained:-

(a)  Cash HK$1,100;

(b)  HKID Card of PW1;

(c)  Home Return Permit of PW1;

(d)  One HSBC ATM Card;

(e)  One HSBC Visa Card;

(f)  One Bank of China ATM Card;

(g)  One Senior Citizen Card;

(h)  One Elderly Octopus Card;

(i)  One security personnel permit; and

(j)  5 membership cards.

5.PW1 later confirmed that those were his properties.  The black wallet was worth around HK$1,200.

6.The defendant was arrested.  Under caution, the defendant remained silent as he is a deaf-mute.  A video-recorded interview was later conducted with the defendant with the assistance of a sign language interpreter.  The defendant remained silent.

7.At the material time, the defendant stole property belonging to PW1.

The defendant’s background

8.The defendant is 66 years old.  He is deaf and mute and was abandoned by his parents when he was a child.  He received up to primary 3 education.  He is unemployed and relies on CSSA of about HK$4,000 per month.  

9.The defendant has 46 previous convictions, 43 of which are for theft.  His last conviction was on 31 December 2019 for pickpocketing and he was sentenced to 10 months’ imprisonment.

10.According to the mitigation letter from the other prisoners, the defendant is a kind and hard-working man.  They urged the court to pass a lenient sentence to help an elderly man with no social support.  In his mitigation letter, the defendant explained that he committed the offence out of financial reasons.

11.Counsel submitted that the “basic” starting point for such offences is 15 months’ imprisonment.  He pointed out that the defendant acted alone, there were no equipment or weapons and no one was hurt.  The defendant has pleaded guilty, indicating his remorse.

Discussion

12.Such offences are very prevalent, as a result of which the Court of Appeal has laid down guidelines for sentence.

13.In Vy Van Kien and Another [1991] 1 HKLRD 422, Penlington JA (sitting as an additional judge of the High Court)  said:-

“Each case always be treated on its own facts and the circumstances of each offence and offender will always vary. However, from a consideration of the relevant authorities it has been accepted that pickpocketing has become prevalent in Hong Kong and, if a sentence of imprisonment is called for, a starting point of 12-15 months after trial is correct. This should be increased if there are aggravating factors, such as the use of a weapon, like a razor-blade, or if the offence is committed in a place where the public, through no fault of its own, is at risk. This would include all forms of public transport and such crowded places as the racecourses. Another aggravating factor which would certainly call for a substantial increase in sentence would be evidence that the offender was acting in concert with others in a well-organized gang operation.”

14.Counsel helpfully provided the court with the well-known case of HKSAR v Ngo Van Huy CACC 107/2004.  The facts of that case are very similar to the present case.  The offender pickpocketed a lady who was crossing the road at a busy junction in Mongkok.  The offender had a long list of appalling previous convictions.  Since 1989, he has been before the Magistrates Courts on 27 occasions in relation to some 35 offences.  Of these offences, 17 have been for theft or attempted theft.  Others have included assault, contempt of court, unlawful possession of dutiable goods, possession of dangerous drugs and unlawful detention of another person.  The types of sentences he has received for the theft related offences include prison sentences ranging from 3 months to 18 months.  He was only 34 years old but his convictions have spanned the last 15 years.  The Court of Appeal found him to be a habitual criminal and that the sentences hitherto imposed on him have had little or no deterrent effect.  Four specific aggravating features were identified, namely, the professional nature of the offence, the location where the offence took place being a crowded street in Mongkok in the evening, the victim being a female on her own and the fact that the offender was a persistent offender.

15.The Court of Appeal stated at paragraph 9 that:-

“In our view, the following guidelines and principles for this type of offence should now be made clear…:

(1)  Theft by pickpocketing can be regarded as the type of offence that society severely and rightly condemns. Although in many cases, the value of the items stolen may not amount to much, the significant degree of inconvenience, the relative ease with which it can be effected by a direct invasion of or about the person and privacy of those minding their business in public places, and the adverse reputation that this type of crime collectively brings upon a city makes this offence a particularly serious one. It is one which attracts justifiably in our view a heavy penalty.

(2)  The guideline sentence of 12-15 months after trial is therefore appropriate for a first time offender. This is an immediate custodial sentence, not a suspended one.

(3)  Of course, account must be taken of the existence of any aggravating, or particularly mitigating, features before the court.

(4)  Aggravating features include:-

(a)  The presence or use of a weapon (such as a razor-blade or knife used to cut open, say a handbag or, worse still, intended to be used on the victim:- see Vy Van Kien.

(b)  Where the offence is committed in a place in which the public is at particular risk, such as crowded places like the MTR or the racecourse, crowded shopping areas where the pedestrian traffic is heavy.

(c)  If the accused commits the offence in conjunction with another, the sentence should be higher.

(d)  Where the accused is a repeat offender or, worse still, a persistent one:- see R v Chiang Pok Wing, unreported, HCMA 589/1996, 25 July 1996, Court of First Instance; HKSAR v Huynh Van Dung, unreported, HCMA 270/2001, 21 June 2001, Court of First Instance.

(5)  We should just elaborate on the aspect of an accused’s previous convictions as being an aggravating feature. It used to be at one stage sentencing policy that a person would not receive an increase in sentence by reason only of a poor record of like offences… Rather, the accused would simply not receive any discount from which a person of clear record might benefit. This has now changed. Sentencing policy in Hong Kong (and, it should be noted, elsewhere in the world including the United Kingdom and Australia)  recognizes that where there are repeat offences of the same kind, a person’s previous record is likely to be an aggravating feature where this demonstrates in particular either the need to impose a deterrent sentence on the particular accused (the previous ones not having apparently had this effect)  or the need to protect society from criminals like him:- see the judgment of Stuart-Moore V-P in HKSAR v Chan Pui-chi [1998] 2 HKLRD 830 at 833-4. Where a poor previous record for similar offences exists, a court will be justified in imposing a substantially higher sentence:- see Chan Pui-chi at 833 F-I.

16.The court understands that the defendant has disabilities and little or no social support.  However, for serious offences, personal background and financial circumstances are not mitigating factors.

17.The defendant asserted that he has no skills.  In fact, he started pickpocketing at the age of 14 and has been honing those skills throughout his life.  He has been sentenced to prison on all but one occasion since 1968.  Those sentences ranged from a few months to 30 months.  He was last convicted on 31 December 2019 but he reverted to pickpocketing soon after his release from prison.  The previous sentences obviously had no deterrent effect on him. 

18.Having considered the facts of the present case, the relevant authorities and the mitigation put forward for the defendant, I adopt a notional starting point of 15 months.  As in Ngo Van Huy, the circumstances of the theft in the present case puts it at the higher of the range.

19.From that starting point there must be a substantial increase on account of the defendant’s appalling previous record for theft.  His record is far worse than the offender in Ngo Van Huy.  The need for a deterrent sentence for this particular person as well as the protection of society dictates that, notwithstanding the fact that what was involved in this case was the theft of a wallet worth HK$1,200 with cash of HK$1,100, there should be added another 15 months.

20.There also exists the aggravating feature that the offence was committed in a crowded place, ie inside an MTR train during rush hour.  I would therefore add another 3 months.

21.In addition, this offence was committed soon after the defendant was released from prison for the same offence.  I therefore add another 3 months to the sentence.

22.For the above reasons, I adopt a starting point of 36 months.  The defendant has pleaded guilty at the first opportunity.  I give him the full one third discount.  The sentence is reduced to 24 months.