HKSAR v. Anique Hamza

DCCC 834/2020

[2021] HKDC 1030

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 834 OF 2020

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REASONS FOR SENTENCE

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1.Defendant pleaded guilty to five counts of theft, Charges 1 to 5, contrary to Section 9 of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong. The modus operandi of each of the offences is almost identical, being that the defendant would either board a taxi alone or with other passengers. He would sit at the front seat next to the taxi driver and then distracted the driver by giving him the mobile phone and instructed him to look for someone nearby to pick him or her up. When the taxi driver was distracted, defendant would take the driver’s property and left the taxi later without paying any hire.

Charge 1

2.On 3^rd October 2019, defendant boarded a taxi in Ngau Tau Kok and sat next to the driver.  He passed his mobile phone to the driver and told him a lady would tell him the address.  The driver was instructed by the caller to look for someone pushing an old woman in a wheelchair.  When the driver could not find anyone that the female caller asked him to look for, he gave the phone back to the defendant and then the defendant left the taxi.  Upon checking, the taxi driver found that one iPhone worth about HK$10,600 together with the iPhone case worth around HK$200 was stolen from the storage compartment between the two front seats. 

Charge 2

3.Around two weeks later on 16^th October 2019, a taxi driver picked up defendant in Kwun Tong and the defendant sat at the front passenger seat.  He passed his mobile phone to the taxi driver and a female caller told him to look for someone at the opposite side.  The driver could not find anyone around and then defendant suddenly decided not to take the hire and left the taxi.  Later on when the driver checked his bag which was placed near the front passenger seat, he found that a wallet containing (1)  one Hong Kong Identity Card; (2)  one driving licence; (3)  one Home Visit Permit; (4)  four credit cards; (5)  ATM card; (6)  HK$920 and around also HK$200 were missing.

Charge 3

4.On 9^th January 2020, a taxi driver picked up defendant and three other males in Yau Ma Tei.  Defendant sat at the front passenger seat.  A person at the back showed the taxi driver his mobile phone and appeared to tell the driver to go to the location as shown on the phone.  The taxi driver did not understand what he was saying and turned around to try to communicate with him.  Soon he gave up the communication and asked the four of them to leave the taxi.  Ten minutes later, the taxi driver found out that a wallet with around $400 containing (1)  one Citi Octopus credit card; (2)  three ATM cards; (3)  two petrol cards; (4)  one 759 store membership card; (5)  one magazine VIP card; (6)  one name card; (7)  one packet which contained one paper charm (worth around HK$10)  and (8)  HK$100, was stolen from a storage compartment at the front part of the taxi.  At around 9.25 pm on the same day, a police officer intercepted defendant and another male in Yau Ma Tei.  Upon searching, some of the stolen items were recovered from the defendant’s pockets. 

Charge 4

5.About a month later on 18^th February 2020, a taxi driver picked up defendant in Kwun Tong.  The defendant sat at the front passenger seat and he spoke to the driver in a language that he could not understand. Defendant then passed the phone to the driver.  A male caller on the phone asked the driver to drive six friends of his to Queen Elizabeth Hospital.  The driver refused as his taxi can only hold five persons.  He returned the phone to the defendant and then the defendant left the taxi.  Subsequently, the taxi driver discovered that a wallet with around HK$200 containing (1)  one Hong Kong Identity Card; (2)  one Home Visit Permit; (3)  one driving licence; (4)  two ATM cards; (5)  one credit card; (6)  two Octopus cards with HK$210 remaining value, and (7)  HK$1,000 were stolen from his bag which was placed on his left-hand side at that moment.

Charge 5

6.Six days later on 24^th February 2020, another taxi driver picked up the defendant in Kwun Tong.  Defendant sat at the front passenger seat and passed his mobile phone to the driver.  A female caller asked the driver to drive the defendant to Queen Elizabeth Hospital.  When the taxi reached Tung Ming Street, defendant passed the mobile phone to the driver again.  The female caller told the driver to look for an old woman in a wheelchair at the McDonald’s in Kwun Tong and pick her up.  When the taxi reached the location, the female caller instructed the driver to look to his right but he could not see anyone bearing the description.  The driver then asked the defendant to leave the taxi as he was told by the female caller that the defendant had no money to pay for the hire.  The defendant alighted the taxi after receiving his own mobile phone.  Soon the driver discovered that HK$500 which he had placed in between the two front seats was missing. 

7.After arrest and in a subsequent cautioned interview, defendant claimed that he stole the items in Charge 1, 2 and 4 and gave all of the items to a girl named “Asfa”.  In respect of Charge 3, he claimed that after he stole the driver’s wallet he threw the wallet and kept its contents.  For Charge 5, he claimed that he stole the taxi driver’s money and he could pay him back. 

Mitigation

8.Defendant is 19 years old and single.  He has a clear record.  He was born in Pakistan and came to Hong Kong when he was 2 years old.  He is the fourth child of a family and is a Hong Kong Permanent Resident.  His father and mother are currently living in Pakistan.  His second and third eldest sisters, both teachers currently working in Hong Kong, are living apart with the defendant but they took turns to visit the defendant and look after him. Defendant was educated up to Form 3 but he could not continue his studies as his father suffered a heart attack while paying a visit in Pakistan and the defendant was the only one in the family at that time that could leave Hong Kong and take care of him.  After his return to Hong Kong, the defendant then worked at the DHL sorting office at the airport and also as a transportation worker.  He was currently unemployed.

9.Defendant was arrested on 9^th January 2020 and was released on bail.  On 25^th February 2020, he was re-arrested and detained. He was granted bail in this case by a District Court Judge on 15^th December 2020.  I was informed that the defendant was arrested again on 28^th January 2021 in connection with another series of offences which involved stealing from taxi drivers as well.  He was charged with six counts of theft and the case DCCC 279/2021 has been adjourned to 31 August 2021.  I was also informed by counsel for the defendant, Mr Beel, that the defendant pleaded not guilty in that case.

10.In relation to the commission of offences, it is submitted that the defendant came to know some people, all of whom were older than him whilst playing basketball in Kwun Tong.  He was bullied by them and they exerted coercion upon the defendant and instructed him to do the illegal acts.  However, defendant accepted that he committed those offences out of his own free will. 

11.As the defendant is only 19 years old, this court has obtained a background report and suitability report for Detention Centre and Training Centre before sentence.  As revealed in the background report, defendant expressed remorse for what he had done and said he had learnt a hard lesson from the previous remand.  He claimed that he had cut all the links with those dubious peers and he intended to secure a job and shoulder up the responsibility of his family upon release. 

12.His second elder sister told the Probation officer that the defendant started taking cannabis when he was working as a part-time waiter in 2019.  She said that he kept the consumption until he was being detained.  She gave full support to the defendant and she considered that a Detention Centre order would be most beneficial to him as he can build up a better self-discipline with the strict and tough training there.

13.The Commissioner considered that the defendant is unsuitable for detention either in the Detention Centre or Training Centre as the medical officer opined that he is drug-dependant and medically unfit to participate in the centre programmes.  I also note that in the suitability report that the defendant has serious discipline issues such as assaulting and disputing with other person in custody and he had been sternly warned and put on adjudication report for 10 times when he was remanded.

Sentence

14.I have considered the oral and written mitigations advanced by Mr Beel on behalf of the defendant.  The offences that the defendant committed were serious and they were akin to pickpocketing.  In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal laid down sentencing guidelines for pickpocketing offences.  A starting point of 12 to 15 months will be applied for a first offender where there are no aggravating features.  There are several aggravating features existed in the present case.  The offences were premeditated, they were committed by a joint enterprise and they targeted a specific class of victims.  Given the serious nature of the offences and the defendant’s behaviour while he was remanded, despite his young age I am of the view that an immediate custodial sentence is the only appropriate sentence to deal with him. 

15.I will take a starting point of 12 months’ imprisonment for each charge and enhance that by 3 months for the aggravating factors.  The defendant indicated his plea a few days before the trial was due to commence and no witnesses were required to attend court.  I will exercise my discretion to give him one-fourth discount for his sentence. 

16.For each charge, that is Charges 1 to 5, the defendant is sentenced to 11 months one week’s imprisonment.  The offences were committed by employing similar modus operandi and spanned over almost six months.  In principle, they are separate and distinct offences and the sentence should normally be ordered to be run wholly consecutively but that would be too harsh to the defendant.  I bear in mind the totality principle and order that 3 months one week’s imprisonment of the sentence on Charges 2, 3 and 4 and 4 months’ imprisonment of the sentence on Charge 5 are to run consecutively to the sentence on Charge 1 and hence the total sentence for five charges is 23 months 4 weeks’ imprisonment, i.e. 24 months’ imprisonment.