HKSAR v. Mac Quang Binh (also known as Mac Quang Bink)

DCCC 772/2021

[2021] HKDC 1552

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 772 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of “theft”, contrary to section 9 of the Theft Ordinance, Cap. 210.

Facts

2.At all material times on 27 May 2021, Ms. Wong Kwok Ying was walking outside Ground Floor, No.21 Un Chau Street, Sham Shui Po, Kowloon, Hong Kong (“the Location”).  She was carrying a rucksack on her right shoulder, while the left shoulder strap of her rucksack was hanging loose behind her back.  The left shoulder strap had a small zipper pouch attached thereto.  In the zipper pouch were, amongst other things, cash in the sum of $1,380, one membership card and one calendar card.

3.At around 4:34 p.m. on the same day, PC 12066 was on patrol in Sham Shui Po when he spotted the defendant acting suspiciously.  PC 12066 thus kept the defendant under observation.

4.At around 4:38 p.m. on the same day, PC 12066 saw the defendant following Ms. Wong near the Location.  He then saw the defendant grabbing Ms. Wong’s zipper pouch with his right hand, unzipping it with his left hand, and stealing cash of $200, one membership card and one calendar card (“the Properties”)  before he walked away.  PC 12066 intercepted the defendant and seized the Properties from his hand.

5.Ms. Wong confirmed that the Properties were stolen from her.  The defendant was arrested and cautioned. The defendant’s action of grabbing Ms Wong’s zipper pouch was captured by CCTV of a nearby shop.

Mitigation

6.The defendant is aged 57 and came to Hong Kong in 1987 as a refugee.  He was allowed to remain in Hong Kong and is now a Hong Kong resident.  He is single and his family members are all in Vietnam.  Prior to arrest, he worked as a casual cleaning worker and was also receiving CSSA.  He has 42 criminal conviction records, 28 of which relate to theft / attempted theft.

7.In mitigation, it was submitted that the defendant committed the offence out of momentary greediness.  It was further submitted that:

(a)  no weapon was used in the commission of the offence;

(b)  there was no evidence that the location where the offence took place was a crowded place;

(c)  the defendant acted alone; and

(d)  value of the stolen properties was not substantial and all stolen properties were recovered.

Sentence

8.In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal has laid down the sentencing guidelines for the offence of pickpocketing.  The usual starting point for a first offender should be in the range of 12 to 15 months’ imprisonment.  The starting point will be adjusted in the presence of aggravating features such as the use of weapon, that the offence was committed in crowded places, that the offence was committed by more than one person and the accused is a repeated offender.

9.In HKSAR v Chiu Suet Yee, Angel, CACC 105/2010 at paragraphs 10-11, the Court of Appeal held that in determining the starting point from the range of 12 to 15 months’ imprisonment, the sentencing court should consider the circumstances of the case other than those which may amount to aggravating factors.  Matters such as value of the stolen property, age or vulnerability of the victim and the expertise used in the theft should be considered in determining the appropriate starting point.  In that case, in respect of the offence involving an old man as the victim, the Court of Appeal considered 15 months’ imprisonment as the appropriate starting point. 

10.The CCTV footage showed that at the time of the offence, the pedestrian traffic at the Location was not heavy. Thus, I agree with the defence that this does not amount to an aggravating factor.

11.Taking into consideration the circumstances of the present offence including the value of properties stolen and the fact that the victim in this case is not an elderly, I consider the appropriate starting point to be 12 months’ imprisonment.  The only aggravating factor is the defendant’s appalling record.  For this factor, the starting point should be enhanced by 9 months.  Thus, the overall starting point is 21 months’ imprisonment.  Given the defendant’s plea, he is entitled to the usual 1/3 discount and the sentence is reduced to 14 months’ imprisonment.