HKSAR v. Chow Koon Hei

DCCC83/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 83 OF 2010

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of theft. In sentencing I have taken into account the whole circumstances of the case including its nature and facts, background of the defendant and mitigation put forward on his behalf.

2.Facts of the case are simple. At about 3 pm on 2 January this year in a crowded market in Tsuen Wan, the defendant approached a lady, 78 years of age, who was standing outside a fish stall. He put his hand into her handbag and took away a wallet. His conduct was seen by a police officer who immediately intervened. The defendant was holding the stolen wallet in his hand. The officer arrested him.

3.Under caution, the defendant admitted to have stolen the wallet because he had just been released from prison and was in need of money.

4.In consideration of the sentence, I have regarded the case of HKSAR v Ngo Van Huy CACC107/2004. As the court said, this sort of offence can be regarded as one which the society severely and rightly condemned. I can see no reason to depart from the guidelines and principles set out in that case.

5.An immediate custodial sentence should be imposed for this nature of offence even if the defendant is a first-time offender. In fact, the defendant is a person with an appalling criminal record. Since 1969 he had on 41 previous occasions been convicted. This included 36 cases of theft or attempted theft, quite many of them were specifically pickpocketing cases. He was last convicted on 15 May 2009 for a pickpocketing case and sentenced to 10 months’ imprisonment. He was discharged in December 2009. On 2 January this year he committed the present offence.

6.In all the circumstances, I am of the view that a starting point of 15 months is appropriate taking into account the nature, facts and overall circumstances of the case. The defendant picked as his victim an aged lady.

7.The present offence was committed at a crowded market. Since it was committed in a place where the public is at particular risks an aggravating feature existed. For this aggravating feature, I add 3 months to the initial starting point.

8.Having regard to the defendant’s poor record, there is a need for a deterrent sentence. As I have mentioned, the record is poor. It spans 30 years. The defendant clearly is a persistent thief. The need for a deterrent sentence for this particular defendant and the protection of society dictate that a further 9 months should be added to the starting point.

9.Learned counsel for the defence submitted the cases of R v Vy Van Kien HCMA1162/1990 and Chung Lai Shan HCMA530/2009 and argued that previous conviction record should not be taken into account in sentencing. In this regard, I prefer to follow the approach in the recent Court of Appeal cases of HKSAR v Chan Pui Chi [1999] 2 HKLR 830 and HKSAR v Ngo Van Huy CACC107/2004 which reflect the recent thinking in this area.

10.Another factor which I should take into account is the frequent occurrence of this sort of offence. Though there has been no specific information produced by the prosecution as to the prevalence of this particular nature of offence, nor was there an application for enhancement of sentence on the grounds of prevalence, experience tells that this sort of offence is numerous. The court too often has to deal with cases of this nature. Without the benefit of statistics, I am of the view that it is appropriate to add a further 3 months to the starting point.

11.I note the case of Tam Wai Pio [1998] 4 HKC 291 which concerns the approach to be adopted when there is an enhancement of sentence following an application under OSCO. In the present case there is no such application. In my opinion, it is appropriate to reflect the aggravating features in the starting point rather than making an enhancement at the final stage.

12.In all the circumstances, taking into account the aforesaid factors, I adopt an ultimate starting point of 30 months.

13.The defendant is 60 years of age. Since the age of 20 he has been in and out of prison so frequently that a good proportion of his life was spent in custody. He got married for the first time early last year but this did not help him to turn over a new leaf. He was convicted in May 2009 and very soon after his discharge from the sentence imposed, he committed this offence.

14.I was told that he committed the offence because of financial difficulty. He was receiving CSSA. This is not a mitigating factor. I was told that he is remorseful. I am slow to accept that. The defendant pleaded guilty, he is entitled to a one-third discount. Having considered the whole circumstances, I am of the view that this is the extent of discount the defendant is entitled to, I therefore sentence the defendant to 20 months’ imprisonment for this offence.