HKSAR v. Chiu Suet Yee, Angela

DCCC134/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 134 OF 2010

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Reasons for Sentence

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1.Defendant, please stand. Defendant has pleaded guilty to a total of five charges of theft. These are all pick-pocketing offences. The first four offences occurred in March last year at San Hui Market. The 1st charge was in San Hui Market, New Territories, Hong Kong. The 2nd, 3rd and 4th charges were committed also in March. In all first four charges Octopus cards were stolen.

2.In relation to the 5th charge of theft, that was committed on 12 April 2009, and it was also in San Hui Market in the New Territories. On this occasion a wallet was stolen, together with cash of $1,300, one Hong Kong Identity Card, one Home Visit Permit, one library card, one bank card and one Octopus card. I am informed that, apart from the wallet and possibly the Octopus card, the rest of the property in this charge had not been recovered.

3.The facts are typical of pickpocketing cases in Hong Kong. It was on 12 April last year, at 5.15 pm, the victim in the 5th charge was shopping for seafood in San Hui Market when he felt somebody patting him on the right rear trouser pocket where his wallet was placed. When he checked he found that his wallet, together with its contents, were missing. He immediately reported the matter to the police.

4.At about 7 pm, on the same day, the defendant was seen acting furtively by the police. The defendant at that time was with a male called Chan Kwok-wai. They were intercepted. Upon a search from the left front pocket of the defendant’s trousers were found a Hello Kitty Octopus card, one My Melody Octopus card and two Octopus cards with LV patterns.

5.Under caution, the defendant admitted that: she had stolen the Hello Kitty Octopus card and the My Melody Octopus card from two different women in San Hui Market and Hong Lok Road; and that she had also stolen the two Octopus cards with LV patterns from the handbags of two other different women in Yuen Long; and on these four occasions it happened in March.

6.The defendant, under caution, said that it was Chan Kwok-wai who had stolen the wallet of the victim in the 5th charge, and Chan then threw the wallet into a rubbish bin near a male toilet on the platform of San Hui Market. The defendant admitted that she was a lookout in order to facilitate Chan to steal the wallet from the victim in the 5th charge.

7.Subsequently police recovered the wallet from the rubbish bin and, as I have said, I have been told by Mr Chui for the prosecution that an Octopus card was subsequently recovered but the victim failed to identify it.

(Discussion re recovered property)

8.To return to my reasons for sentence, I have just been informed by Mr Chui that upon his further checking with the police officer, this should have been done at the beginning when I was informed about the facts, nevertheless, I have been informed by Mr Chui that the Hong Kong Identity Card, the China Re-entry Permit and the library card of the victim in the 5th charge were recovered together with the wallet, but the cash of HK$1,300 and the bank card have still not been recovered.

9.The defendant is aged 31 and has six previous convictions, five of which are for theft, and four out of the five were for pickpocketing offences. She was sentenced to imprisonment for pickpocketing in 2002, in 2005 and in 2009. Her last offence, she was sentenced to 18 months’ imprisonment, with one month concurrent to the sentence she was given for the 5th conviction. She is still now, I am told, serving that sentence of 18 months and is due for release in July this year.

10.Pickpocketing offences in Hong Kong are viewed very seriously. The Court of Appeal has laid down certain guidelines in the case of HKSAR v Ngo Van Huy in 2004. In that case the Court of Appeal said, at paragraph 9, that:

“A theft by pickpocketing can be regarded as a type of offence that society severely and rightly condemns.  Although in many cases the value of the items stolen may not amount to much, the significant degree of inconvenience, the relative ease with which it can be effected by a direct invasion of or about the person and privacy of those minding their business in public places and the adverse reputation that this type of crime collectively brings upon a city makes this offence a particularly serious one.  It is one which attracts justifiably in our view a heavy penalty.”

11.The Court of Appeal went on to say that for a first offender an immediate custodial sentence is necessary. The set guideline sentence would be from 12 to 15 months. However, the court will have to consider if aggravating features were present. The aggravating features enunciated by the court, amongst them is if the offence was committed in a place in which the public is at particular risk, such as crowded places.

12.The other aggravating factor would be if the accused commits an offence in conjunction with another. Also the court has to consider another aggravating feature in the present case is that the defendant is a repeat offender. At age 31 she has been convicted on five occasions of theft, four for pickpocketing. So it demonstrated particularly that a deterrent sentence is necessary. It also demonstrates that the previous sentences which were given out to this particular defendant had no deterrent effect whatsoever.

13.Mrs Liang, on behalf of the defendant, had submitted in mitigation that the defendant is remorseful and that she is not a professional, but influenced by her boyfriend. All I can say is the defendant is aged 31 and no longer a teenager. Despite the fact that she had been in prison before she still continues to commit these offences. The only mitigation I can accept in this case is the fact that she is remorseful because she has pleaded guilty, and therefore she is entitled to the full one-third discount.

14.So having considered the facts in this case and the sentencing guidelines, and also the defendant’s background, I consider that an appropriate sentence in this case is for the first four charges, in each charge the starting point sentence will be 30 months’ imprisonment, reduced to 20 months because of her plea. These sentences will be served concurrently.

15.In relation to the 5th charge, she committed this offence with another person, which is an aggravating factor. The defendant also, although she claimed she was a lookout, nevertheless whether she did take part in having a share of the money or not she still has committed this offence. The cash has not been recovered, and neither has the victim’s bank card. That is very serious. So for this 5th charge I consider that the starting point of 3 years’ imprisonment is appropriate, reduced to 2 years’ imprisonment because of her plea.

16.Now I have to consider the totality principle in this case. So of the 2 years’ imprisonment in the 5th charge, 1 year and 4 months will be served consecutively to the sentence of 20 months in the first four charges. Therefore the total sentence will be 36 months, which is 3 years’ imprisonment. This 3-year imprisonment will be consecutive to the present sentence that she is now serving.

Appeal against sentence by the defendant to Court of Appeal allowed. Please refer to CACC105/2010 dated 27 October 2010