HKSAR v. Ngai Wan Fat and Another

DCCC578/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 578 OF 2010

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Reasons for Sentence

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1.Both defendants have pleaded guilty to one charge of attempted theft in that they attempted to steal HK$80 property belonging to Mr Chan. The facts are unfortunately all too common in crowded areas in Hong Kong and this case happened on 11 April this year in Cheung Wong Street, Mongkok.

2.The two defendants were seen chatting to each other by two police officers and as they were chatting they were staring at the wallets of passers-by. Therefore these very alert and diligent police officers kept both defendants under observation. One of the officers saw subsequently the 1st defendant tapping the 2nd defendant’s shoulder once and then pointing at an elderly man, Mr Chan. Both defendants approached Mr Chan from behind and the 2nd defendant pointed at the right front pocket of Mr Chan’s jacket to the 1st defendant. The 1st defendant then stretched his right hand into the right front pocket of Mr Chan’s jacket. The police officers immediately took action and arrested both defendants. The 1st defendant did try to flee and the 2nd defendant had to be subdued prior to arrest. It was subsequently confirmed that Mr Chan had a total of $80 in his pocket.

3.The 1st defendant is aged 53 and has 31 previous convictions, 19 of which are related to theft. His last offence was in February 2009 and he was sentenced to 18 months’ imprisonment and that is also for pickpocketing, so it is obvious that shortly after his release from prison he committed the present offence.

4.The 2nd defendant is aged 48 and has 10 previous convictions, six of which are theft-related. His last offence was in 2008, again for attempted theft for which he was sent to a DATC. Looking at his record, that was a very lenient sentence in the circumstances.

5.In mitigation, Mr Szeto on behalf of the 1st defendant, submitted that the defendant came to Hong Kong in 1979 and it is obvious from the 1st defendant’s criminal record he started committing offences in Hong Kong the very next year after his arrival. The defendant claims that he committed this present offence in order to raise money for his 14 year old daughter who needs blood transfusions weekly and he claims that in his letter to this court that he has become a Christian and he hopes to be given a lenient sentence as he is unlikely to commit another criminal offence.

6.The 2nd defendant is aged 48 and came to Hong Kong in 1980 and he is divorced and has been a drug addict since 1997.

7.In mitigation, both solicitors representing both defendants had submitted two cases for the court’s consideration. The case of HKSAR v Ngo Van Huy which is Cr App No. 107/2004, is a case where the Court of Appeal was dealing with pickpocketing offences. In that case the appellant had pleaded guilty and was sentenced to 30 months’ imprisonment for a pickpocketing offence and he was sentenced in the District Court. In that offence the appellant had taken a mobile phone. The appellant in that case had a very poor record in that he had some 35 previous offences, 17 of which was for theft or attempted theft, so the learned District Judge in that case took a starting point of 2 years. The learned trial Judge then considered that the crime is very prevalent and so in the circumstances he increased the starting point by another 6 months and so gave the defendant a total of 30 months’ imprisonment.

8.The Court of Appeal in hearing the appeal had considered the sentences for pickpocketing was usually in the range of 12 to 15 months for a person of clear record and the Court of Appeal found that it was necessary therefore in the circumstances to lay down the following guidelines and principles for this type of offence and they are, firstly, “Theft by pickpocketing can be regarded as a type of offence that society severely and rightly condemns.” The Court of Appeal considered that although the value of the items stolen may not be much, the inconvenience it causes and the relative ease with which this can be done and also the adverse reputation that it brings to this city makes this offence a very serious one.

9.The Court of Appeal also said that aggravating features would include presence or use of a weapon, whether offences committed in a place in which the public is at particular risk, for example, crowded places, etc., the third is if the accused commits the offence in conjunction with another the sentence should be higher. Fourthly, where the accused is a repeat offender or worse still a persistent one and the Court of Appeal noted that where there is a poor previous record for similar offences, a court will be justified in imposing a substantially higher sentence. So in the case of Ngo Van Huy the Court of Appeal then used a starting point of 15 months’ imprisonment, they then added 9 months because of the defendant’s poor record, the 3 months is added as an aggravating feature because it was committed in a crowded area. Then the Court of Appeal then dealt with the fact that there was an application for an increase of sentence under OSCO.

10.Now in the present case before me, the defendants both had conspired and had made an agreement to pickpocket Mr Chan. Their modus operandi is quite a slick one because they would eye passers-by, they target someone whom they think is an easy target, then they move in together. Mr Chan would have stood no chance at all had it not been for the alert officers who were on duty, so the fact that the victim did not lose any money is not a mitigating factor at all.

11.So in relation to the 1st defendant, I would in applying the guidelines laid down by the Court of Appeal in HKSAR v Ngo Van Huy, I would start with a starting point of 15 months. The 1st defendant has a very bad record and therefore I would add 9 months to that 15 months. Again, the offence was committed in Mongkok, a crowded area of Hong Kong, and therefore that deserves an increase of 3 months. I will add another 3 months because of the fact that this crime was committed by both defendants together. So the starting point for the 1st defendant will be one of 30 months reduced to 20 months because of his plea. The defendant goes to prison for 20 months.

12.The 2nd defendant, again I would use a starting point of 15 months. The because his record is not as bad as the 1st defendant, I would reduce it by 3 months from the 9 months that I had given the 1st defendant and I would add 3 months for the fact that it was in a crowded Mongkok area and 3 months for committing the offence together with the 1st defendant, so giving a starting point of 27 months. Therefore, because of the 2nd defendant’s plea, the sentence is reduced by one-third to 18 months.