HKSAR v. Wong Kai Chun

DCCC 562/2021

[2021] HKDC 1120

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 562 OF 2021

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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 dated 2 September 2021, admitted by the defendant today[2].

3.In summary on the afternoon of 10 April 2021 Ms Li was on her way home by MTR from Sham Shui Po Station.  At 2:12 p.m. Ms Li took Lift No. BL1, which was near exit B, down to the concourse. Ms Li was carrying with her a cross body bag in which she kept her mobile phone.

4.At the same time the defendant and SPC 1771, who had earlier seen the defendant paying attention to the backpack of a pedestrian outside Exit B2 of the station, also entered the lift.  The lift was crowded with people standing elbow-to-elbow. 

5.Inside the lift the defendant stood close to Ms Li.  The defendant had placed a jacket over her right arm.  SPC 1771 saw the defendant stretch her right arm towards Ms Li’s bag.  SPC 1771 noticed the outermost pocket of Ms Li’s bag was open and the defendant holding a mobile phone. 

6.The defendant was intercepted in the station concourse when using an Octopus card over a reader.  

7.Upon search the police recovered Ms Li’s mobile phone from the pocket of the defendant’s jacket (charge 1). 

8.The Octopus card bore the name of a Ms Yau and the photograph of someone other than the defendant (charge 2)[3].

9.Under caution the defendant admitted stealing the mobile phone because she had no money and that she had picked up the Octopus card at the Shui Wo Street market that morning. 

Mitigation

10.In passing sentence, I have carefully considered the oral and written submissions of Miss Ho, including that the defendant who is 67, divorced, with four children who are all grown up, lives alone and relies on Comprehensive Social Security Assistance[4].

Charge 1 - pickpocketing

Guidelines

11.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[5]. 

12.In passing sentence I have considered the cases referred to by Miss Ho[6]. 

13.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.  The sentencing court will however need to avoid double counting by taking into account a matter later considered as an aggravating feature[7]. 

14.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.

15.I am satisfied a starting point of 15 months’ imprisonment is appropriate.

Aggravating features

16.In Ngo Van Huy the Court of Appeal stated that the starting point can be increased if there exist aggravating features including where the offence is committed in a place where the public is at particular risk such as crowded places like the MTR and where the accused is a repeat offender or, worse still, a persistent offender. 

17.The theft taking place in the MTR in a crowded lift, I am satisfied the starting point is to be enhanced by 3 months to 18 months’ imprisonment.  

Persistent offender

18.The defendant has appeared in court on 22 occasions amassing a total of 32 convictions with 28 for offences of theft or attempted theft, 15 specifically stated to be pickpocketing. 

19.The defendant last appeared in court on 17 December 2019 when she was sentenced to a total of 22 months’ imprisonment for three charges of pickpocketing in DCCC 843/2019. The defendant was released from prison on 21 November 2020[9].  Just over four months later the defendant committed the present offences. 

20.By reason of the defendant’s persistent offending I am satisfied the starting point is to be enhanced by 9 months to 27 months’ imprisonment, which is the same enhancement as in Ngo Van Huy.

21.Giving the defendant full credit for her plea of guilty reduces the sentence on charge 1 to 1 year and 6 months’ imprisonment.

Charge 2 – theft by finding

22.I am satisfied that a short sentence of imprisonment is appropriate for theft of the Octopus card.  I am satisfied a starting point of 1½ months is appropriate.  Giving the defendant full credit for her plea of guilty reduces the sentence on charge 2 to 1 month’s imprisonment.

Totality

23.The theft of the Octopus card is separate and distinct from the pickpocketing offence.  I am satisfied the theft of the Octopus card adds to the culpability of the defendant. 

24.I am satisfied that a consecutive sentence is appropriate and that a total sentence of 1 year and 7 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 6 months’ imprisonment; and

Charge 2 – 1 month’s imprisonment consecutive to charge 1.

The total sentence to be served by the defendant is 1 year and 7 months’ imprisonment.