HKSAR v EL JAMIY ANAS

DCCC 826/2025

[2025] HKDC 2151

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 826 OF 2025

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REASONS FOR SENTENCE

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1.D1 and D2 are both convicted on their own pleas and agreement to Amended Summary of Facts of a charge of “theft”, contrary to section 9 of the Theft Ordinance, Cap 210 (Charge 1).

2.D2 is further convicted of a charge of “possession of a dangerous drug”, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (Charge 2).

Facts

Charge 1

3.On 9 March 2025, at about 12:25 am, the victim came to sit on the right side of D2 in the outdoor area of a bar at No. 2 Lan Kwai Fong, Central.  At that time, D1 sat on the left side of D2.  D1 and D2 were talking to each other. 

4.D2 left the area but later returned and moved to the victim’s front to continue chatting with the victim, while D1 sat down on the victim’s left.  While the victim and D1 were chatting, D1 gradually moved closer to the victim. Eventually, D1 reached out his right hand to pick up the victim’s iPhone, which the victim accidentally dropped to the stone bench from his left jacket pocket, and took it away.  D1 and D2 left the scene shortly afterwards.

5.The victim then realised that his iPhone was missing from his left jacket pocket.  He reported the case to the nearby patrolling police.  He used the “Find My iPhone” function to locate his missing phone.

6.D1 and D2 were later found sitting at a nearby pavilion and were subsequently intercepted by the police.  Body search of D2 revealed the victim’s iPhone in his possession.  Upon inquiry, D2 claimed that the iPhone belonged to him.  D1 and D2 were subsequently arrested on the same day.

7.In the subsequent cautioned video interview, D2 said he was not at the scene when the victim’s iPhone was stolen.  He admitted helping D1 and he did not want the iPhone to be found with D1.  He stated that D1 had earlier passed the victim’s iPhone to him.  D2 also claimed that when he found the victim’s iPhone, he did not have enough time to return it.

Charge 2

8.Body search of D2 inside the Central Police Station on the same day found one transparent resealable plastic bag containing 0.62 gramme of cannabis in herbal form.  D2 was arrested for possession of a dangerous drug.

9.In the subsequent cautioned video interview, D2 admitted that the drug was for his own consumption.

10.The Government Chemist subsequently confirmed the narcotic contents of the drug.

Criminal Record

11.Both defendants have a clear record in Hong Kong.

Mitigation – D1

12.D1 is aged 26.  He has received education up to secondary school level and is single.  He left Morocco approximately 5 to 6 years ago, travelling through different countries.  He used to work as an artist and trading in second-hand musical instruments to earn a living.

13.Since his arrival in Hong Kong, D1 has been unemployed. He is a Form 8 recognizance holder, though he was not receiving assistance from the ISS.  It was said that he spent his free time practising boxing, and he also attended church services regularly.

14.He was introduced to D2 two weeks before the incident, and they arranged to meet in early March 2025, which led to the present offence.

15.It was said that since his arrest on 9 March2025, he has been in custody. During his remand, he has participated in a Bible study programme.

16.D1 admitted committing the offence out of greed when he noticed the phone had fallen from the victim’s jacket pocket.  It is submitted that D1 should be entitled to full one-third sentencing discount by reason of his guilty plea at the earliest opportunity.

17.Defence counsel referred this court to the case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  It is conceded by defence that in cases involving theft of smartphones, the courts have consistently taken the upper end of 15 months as the starting point, where the court recognised the value, easy resale, and the personal/ irreplaceable data stored on smartphones, making the theft particularly serious[1].

18.Defence counsel submitted that by reason of the principles aforesaid, the appropriate sentencing starting point would be 15 months’ imprisonment for theft of a mobile phone.  She admitted the aggravating features in sentencing in this case are that the offence was committed in concert with D2, and that D1 was a Form 8 recognizance holder.

19.She also referred this court to the case of HKSAR v Chan Mei Yee Carman, CACC 447/2009, and submitted that in the present case, although two individuals were involved, the offence was neither organised nor professional in nature.  It was submitted that D1 met D2 on the night in question, initially for social and leisure purposes.  It was only when the victim dropped his mobile phone, then D1 took advantage of the situation and stole it.  It was said that the sequence of events demonstrates the offence involved some, but only minimal, pre-meditation and planning.

20.Defence counsel submitted that whilst the offence occurred in Lan Kwai Fong, CCTV footage showed it was not as crowded as in compared to the MTR, racecourse or business shopping districts where pedestrian traffic is heavy.  She said that the case reflected a simple, two-person venture, and that the stolen property was finally recovered and returned to the victim.

21.It is submitted that the present case is less serious than the Chan Mei Yee Carman case and the authorities cited therein, and therefore a sentencing starting point in the range of 21 to 24 months’ imprisonment would be appropriate.

22.Further, it is submitted that D1 shows genuine remorse with his timely guilty plea.

23.Defence counsel also tendered to this court a letter from the church for the court’s consideration in sentencing.

Mitigation – D2

24.D2 is aged 39.  He received his master’s degree in France and is holding a Morocco visa.  He is said to be a permanent resident of France.  It is said that he used to come to Hong Kong as a businessman, and was an athlete as a boxer.  He earns around HK$35,000 per month.  He used to be a Hong Kong resident on a work visa before 2018, and he has girlfriends and friends in Hong Kong.

25.It is said that he committed the offence after he had some drinks on the day, and he is now deeply remorseful.  It is also said that this was not a pre-planned operation.

26.Defence counsel referred this court to the case of HKSAR v Wong Chi Wing [2015] 3 HKLRD 376, and said that although there is no sentencing guideline for theft, the sentencing judge has the duty to consider all the circumstances of the case in order to determine an appropriate sentencing starting point.

27.He also asked this court to consider the case of HKSAR v Md Emon Sha, DCCC 924/2022, and said that compared to the facts of that case, the present case only involved one iPhone.  It was said D2 came to Hong Kong for the purpose of visiting his friends and girlfriend.  The case was not directed at females in well-used tourist locations.  Although D2 did say he was not at the scene when the iPhone was stole, this submission was rejected by this Court because the answer is obvious from the CCTV footage.

28.Defence counsel for D2 also invited the court to accept that there is no aggravating factor in this case.

29.As for Charge 2, defence counsel submitted that since D2 does not have much funds, he asked the court to impose a lenient custodial sentence on D2, and to run concurrent or partly concurrent with the sentence in Charge 1.

Discussion

Charge 1

30.Any person on conviction upon indictment of this charge is liable to imprisonment for 10 years.

31.This court has carefully considered all that was said on behalf of the defendants in mitigation, including the cited authorities and the mitigation letter.  This court has also watched and considered the CCTV footage covering the incident.

32.As said in the case of Wong Chi Wing, although there is no sentencing guideline for theft, the court needs to consider all the circumstances of the case in order to determine the appropriate sentencing starting point.

33.The theft in this case involved the taking of the victim’s iPhone which was said to have accidentally dropped out of his jacket pocket.  But from the CCTV footage, D1 was seen to be gradually moving closer to the victim before he took the phone, while D2 had moved to the victim’s front to chat with him, getting his attention in the process when the phone was taken.

34.Before the taking of the phone, D2 was seen to put a cloth bag of light colour very near to the victim’s left side on the bench.  This would have the effect of covering any hand movement of D1 on the left side of the victim.

35.There is no doubt, after watching the CCTV footage, that the subject outdoor area at Lan Kwai Fong at the time was busy.

36.The iPhone was stolen and the same is a valuable item.  The victim did not only lose the mobile phone, but also personal data within the phone which caused great concern and inconvenience to the victim.  The same is totally disproportionate to the value of the mobile phone[2].

37.This is not strictly, pickpocketing as it was taking of the phone after it dropped by the side of the victim.

38.Considering all the circumstances, the appropriate sentencing starting point for the offence is 12 months’ imprisonment.

39.D1 is a Form 8 recognizance holder which constitutes an aggravating factor in sentencing as he abused the hospitality extended to him by the authorities and people of Hong Kong whilst he seeks asylum by turning to crime which affects Hong Kong’s reputation for order and security of which he seeks to avail himself[3].

40.In HKSAR v Butt Muhammad Gulzar [2020] 3 HKLRD 805, it was said that “the enhancement for being a Form 8 recognizance holder must be substantial otherwise it has no deterrent effect.”

41.The sentencing starting point for D1 is therefore enhanced by 6 months.

42.D1 and D2 committed the offence in the early hours of a Sunday in Lan Kwai Fong, Central, in the outdoor area of a bar when the victim had been drinking for over an hour, and after the defendants entered the outdoor area for nearly an hour, and after the defendants had sat by the side of the victim for around 18 minutes.

43.Lan Kwai Fong is a world-famous tourist attraction, and the court considers the place as a place in which the public is at particular risk as referred to in the Ngo Van Huy case.

44.In the Sandagdorj Altankhuyag case, the trial court considered the offence committed at night in a busy entertainment area and major attraction in Hong Kong, where people are enjoying themselves and, therefore, relaxed and may be less careful about their possessions than would otherwise be the case, amounts to an aggravating feature in sentencing[4].

45.The sentencing starting point for D1 is therefore enhanced by another 3 months.

46.Further, D1 committed the offence jointly with D2 and this constitutes another aggravating feature in sentencing.  The sentencing starting point for D1 is further enhanced by 3 months, totalling 24 months.

47.D1 has pleaded guilty and is entitled to full one-third sentencing discount.  He is therefore sentenced to 16 months’ imprisonment for Charge 1.

48.For the same reasons, the sentencing starting point for D2 is 12 months’ imprisonment, enhanced by 3 months by reason of the nature of the place where the offence was committed, and enhanced by another 3 months by reason of D2 committed the offence jointly with D1, totalling 18 months’ imprisonment.

49.D2 has pleaded guilty and is entitled to full one-third sentencing discount.  He is therefore sentenced to 12 months’ imprisonment for Charge 1.

Charge 2

50.On conviction upon indictment of this charge, a person is liable to a fine of $1 million and to imprisonment of 7 years, subject to section 54A of the Dangerous Drugs Ordinance.

51.Having regard to the nature of the dangerous drug, ie cannabis in herbal form, the quantity in question being 0.62 gramme, and the fact that this is D2’s first conviction of a dangerous drug offence, the court finds it appropriate to deal with D2 by way of a fine.

52.D2 is fined HK$1,000 for this charge, the same to be paid within 7 days. In default of payment, D2 shall serve imprisonment for 7 days, the same be served totally consecutive to the sentence of Charge 1.