HKSAR v. Kwok Wai Hong

DCCC 138/2021

[2021] HKDC 931

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 138 OF 2021

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Reasons for Sentence

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1.Defendant pleaded guilty to Charge 1, attempted theft; Charge 2, theft; and Charge 3, obtaining property by deception. He admitted the Summary of Facts.

2.The facts are straightforward.  On 1 October 2020, he was riding an escalator from the MTR concourse down the platform at Mei Foo Station when he inadvertently stood between a husband and wife.  The defendant attempted to pickpocket from the wife in front of him.  He inserted his hand into her handbag, intending to steal a mobile phone, which was clearly seen by her husband stood behind him.  These are the particulars of Charge 1.

3.The husband shouted loudly and the defendant attempted to run away.  He was eventually subdued by staff of the station and other passers-by.  He begged the man and wife to release him.  She immediately demanded his ID card which he did hand over.  She photographed it and demanded to see his face to confirm the identity card belonged to him.  When it became clear they would call the police, the defendant managed to get free and run away.  At a subsequent identification parade, both the man and wife identified him as the pickpocket.

4.10 days later, the defendant struck again in the Gateway Arcade, Harbour City on Canton Road.  A couple with their two children were shopping.  The wife had placed her mobile phone in a phone case in her handbag hung on the handle of the baby’s stroller.  She had two credit cards in the same phone case.  The defendant stole it out of her handbag.

5.At 3 pm, she discovered her mobile phone had been stolen and immediately called the credit card company who told her that someone had just made two purchases at Bottega Veneta, a shop on the ground floor of the very same arcade.  Her husband ran to the shop just as the defendant was about to use his wife’s stolen HSBC Visa credit card a third time, having already paid for two handbags totalling $26,000.  He had handed over one of her credit cards and signed payment receipts, falsely representing to the sales staff that he was the genuine holder of that HSBC Visa card. 

6.The defendant was caught red-handed obtaining property by deception using the victim’s credit card.  He did try and escape from the shop when the victim’s husband rushed in but did not get far before he was subdued.  After the police arrived at the scene, they found the victim’s second credit card in the defendant’s wallet and her mobile phone in his bag.  These are the particulars of Charges 2 and 3.

7.After arrest and under caution, he admitted stealing the phone together with those credit cards, as well as an earlier attempt to steal a phone from a handbag on the escalator in Mei Foo MTR Station.

8.During subsequent investigations and a viewing of the CCTV from the Gateway Arcade, the police found footage of the defendant loitering near the victim and her child’s stroller before taking something out of her handbag when she was looking in another direction.  He is seen hurrying away.  He is also seen on CCTV buying the two handbags in that shop with a credit card.  He is seen trying to escape the shop when the victim’s husband enters.

Mitigation

9.The defendant is 47 years old, single, and at the time of these offences was unemployed, receiving benefits.  He lives with his brother.  He is not a man with a clear record.  He has 24 convictions from 22 court appearances.  All but 3 of the 24 convictions are for theft.  He was convicted in the District Court in July 2017 for similar pickpocketing offences.  His last conviction was in April 2020 when he was sentenced to 3 months’ imprisonment for shoplifting.

10.The defendant’s best mitigation is his plea of guilty.  Counsel for the defendant has said all he can possibly say on his behalf.  He says he has found God this time whilst detained on remand and will turn over a new leaf.  Nevertheless, the defendant acknowledges that he is a persistent and repeat offender, which is an aggravating factor.  After all, he was only released from his last term of imprisonment a few months before committing Charge 1.

Reasons for Sentence

11.Pickpocketing is serious and causes huge and significant inconvenience to victims.  The Court of Appeal in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 laid down guidelines for these offences, namely, 12 to 15 months’ imprisonment after trial for a first offender is a norm, with upward adjustments for aggravating features, such as committing the offence in a crowded public place or that the defendant is a recidivist.

12.I accept the submission that the defendant was acting alone in all offences; did not use a weapon to cut handbags to steal or attempt to steal; and that, ultimately, the victims did not suffer any loss. However, the value of the items was not insignificant.

13.As far as obtaining property by deception is concerned, it has been submitted that a 3 years’ starting point is not uncommon for the fraudulent use of genuine credit cards.  I have referred to relevant and pertinent authorities.  I note the submission that the handbags were $26,000 and that there was no loss to the shop nor the cardholder.  He clearly did act alone and took the opportunity to try and buy high-value items.  He nearly succeeded.

14.I take into account the 1^st charge is an attempted theft and I will take a starting point of 15 months.  But I increase it by 3 months to reflect the fact he targeted the victim on an escalator in a busy MTR station.

15.I further increase the now 18 months’ starting point by a further 9 months to reflect his appalling criminal record and persistent recidivism.  Therefore, I take a 27 months’ starting point for Charge 1.

16.Similarly, for Charge 2, I take a starting point of 15 months and find that the only aggravating factor to be his appalling criminal record and increase that by 9 months.  I take a starting point of 24 months for Charge 2.

17.For Charge 3, I take into account he did use a genuine credit card but falsely represented himself to be the legitimate holder.  I accept he acted alone and probably spontaneously when he found the credit cards in the phone case.  He decided to try his luck and obtain property using one of the cards in the same shopping mall just after he had stolen the phone case.  I find a 3 years’ starting point for Charge 3 appropriate.

18.The defendant pleaded guilty at the earliest opportunity and is entitled to a full one-third discount after that plea.

19.Accordingly, after that discount is applied, I sentence the defendant to 18 months’ imprisonment for Charge 1.

20.I sentence the defendant to 16 months’ imprisonment for Charge 2.

21.And I sentence the defendant to 2 years’ imprisonment for Charge 3.

22.I take into account the totality principle and order Charges 2 and 3 to be served concurrently.  Charge 1 was committed some 10 days earlier.  Therefore, I find partial consecutive sentences appropriate. I order 6 months of Charge 1 to be served consecutively to Charge 3 with the balance concurrent.

23.Therefore, the defendant will serve a 2 year and 6 month term of imprisonment.