HKSAR v. Tsui Chiu Kwai

DCCC64/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 64 OF 2010

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Reasons for Sentence

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1. The Defendant pleads guilty to one count of theft.

2. This was a pickpocketing case.  At about 1845 hours on 17 December 2008, two police officers were conducting anti-crime patrol duties on Argyle Street near the junction of Canton Road, Mongkok, when they saw the Defendant acting suspiciously on Canton Road and put him under surveillance.

3. At that time, the victim and a few persons were purchasing fruit at a fruit stall at Canton Road.  The Defendant stood closely to the back of the victim and stretched his right hand into the left pocket of the victim’s coat with his left hand holding a jacket as cover to conceal his action, he picked out a wallet from the victim’s pocket.

4. One of the police officers immediately grabbed hold of the Defendant’s right hand and the wallet dropped back to the victim’s pocket.  The Defendant was then arrested by the police.

5. The victim’s wallet contained:

1 Hong Kong Identity Card;

1 Octopus Card;

1 Senior Citizen’s Card;

1 Bank Card; and

Cash of HK$170.

All belonged to the victim.

6. The Defendant is aged 47.  He has 30 previous convictions with 19 related to theft.  Out of the 19 theft-related convictions, eight were specifically in relation to pickpocketing.  The last conviction was a pickpocketing offence on 30 October 2008, for which he was sentenced to 18 months’ imprisonment.  The Defendant committed the present offence shortly after discharging from prison, and the facts show that the Defendant is a habitual offender.

7. The Defendant received education up to primary level.  According to Mr Yiu, solicitor for the Defendant, the Defendant was suffering from asthma and bronchitis at the time of the commission of the offence.  He urged me to consider the facts that the Defendant committed the offence because of economic pressure and he committed the offence alone.

8. So far as the sentence is concerned, I find that the facts of the present case are very similar to those in the case of HKSAR v Ngo Van Huy, unreported, CACC107 of 2004.  In that case, the Court of Appeal approved that the customary sentence for a pickpocketing offence should be in the region of 12 to 15 months.  In that case, the Court of Appeal adopted a starting point of 15 months’ imprisonment.  The Court of Appeal increased the sentence by 9 months to take into account that the defendant was a habitual offender.  The Defendant there had 35 previous convictions with 17 related to theft or attempted theft offences.

The Court of Appeal also found that there was an aggravating feature that the offence was committed in a crowded area.  The Court of Appeal considered that the junction of Argyle Street and Sai Yeung Choi Street in Mongkok is a very crowded part of Hong Kong, particularly at that time of the evening.  The Court of Appeal therefore added 3 months and the total starting point was 27 months’ imprisonment in that particular case.

9. In my judgment, the facts of this case are very similar to those in Ngo Van Huy, and so I would also adopt 27 months as the starting point.  Although Mr Yiu submits that there were only a few persons around at the time of the commission of the offence, that part of the Mongkok area is certainly a crowded area of Hong Kong; in particular, the offence was committed also in the evening.

10. I would therefore adopt the same methodology and adopt a starting point of 27 months’ imprisonment.  Giving the Defendant one-third discount for his plea of guilty, the sentence is reduced to 18 months’ imprisonment.  There is no application for enhancement of the sentence under the OSCO, so 18 months’ imprisonment is the sentence in the present case.