HKSAR v. Leung Kiu Sun

DCCC602/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.602 OF 2010

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Reasons for Sentence

1.The defendant faces one charge of attempted theft (pick-pocketing) and one charge of non-production of identity card. He pleaded guilty to both charges, admitted to the summary of facts and was duly convicted.

Summary of facts

2.Police officers spotted the defendant outside shop No.F30 at the charge address at around 6:10pm on 26^th April 2010. As the defendant was acting furtively, they kept him under observation.

3.The officers saw the defendant following a male, opened the lid of the rucksack that the man was carrying and put his right hand into the rucksack. The officers stopped the theft and arrested the defendant. He failed to produce proof of identity.

Previous conviction

4.The defendant was in court on 23 occasions facing a total of 27 charges, of those, 21 were offences similar to charge 1.

Mitigation

5.The defendant is 55 years old. The defendant’s parents had passed away and he does not have any siblings in Hong Kong. The defendant came to Hong Kong in 1979 and settled here. At the time of arrest, the defendant was working as a casual decoration worker earning about $2-3k per month. The defendant is a drug addict.

6.It was put forward in mitigation that the defendant was all along in full cooperation with the law enforcement agency and that he should be given full recognition for his cooperation.

Sentence

7.It is not disputed that this is a case of attempted pick-pocketing. The guidelines set down in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 applies. In our present case, only 2 aggravating factors identified in Ngo Van Huy was present, which is that the attempted theft was committed in a crowded public place on a Monday evening during rush hour in Sham Shui Po and the defendant’s appalling criminal record.

8.The defendant had been brought to court on 23 occasions facing a total of 27 charges. Of those 27 charges, 21 were for theft or attempted theft. His last conviction was on 2^nd May 2009 when he was sentenced to 12 months’ imprisonment for theft. The defendant was last released from prison on 2^nd January 2010. He managed to stay on the right side of the law for slightly more than 3 months before committing the present offence. The defendant is a repeated and persistent offender.

9.I have been very helpfully referred to the recent case of HKSAR v Chan Mei Yee, Carmen, CACC 447/2009 by Mr. Wong for the defendant. The facts in that case are not entirely dissimilar to our present case. There, 2 pickpockets acted together at a crowded public area to steal from the rucksack of the victim. They were caught in the process. The applicant there had been convicted of theft on no fewer than 11 occasions, and she committed the fresh offence not long after her release from her previous term of imprisonment for theft. The applicant was also a drug abuser.

10.At first instance, the learned trial judge adopted a starting point of 39 months’ imprisonment.

11.The Court of Appeal, after reviewing cases where the starting point in a pick-pocketing case was higher than the guideline 12-15 months and usually in the region of 30 months, decided that the circumstances of their case did not warrant a starting point of 39 months. The Court of Appeal then decided that they would commence with a starting point of 15 months’ imprisonment for the attempted theft, taking into account the fact that the offence took place in a busy street, that there was more than one offender and the many previous offences which lie at the applicant’s door, an overall sentence of 30 months’ imprisonment was appropriate.

12.For our present case, I will start by adopting the basic starting point of 15 months’ imprisonment for the attempted theft first. Taking into account the fact that the offence took place in a public place and the lengthy criminal record of the defendant as aggravating factors, the appropriate starting point should be that of 27 months’ imprisonment.

13.Granting the defendant the full one third discount in recognition of his guilty plea, the defendant is sentenced to 18 months’ imprisonment on charge 1.

14.In relation to charge 2, the law only allow punishment by way of a fine, maximum of which is set at level 2, which is $5,000. I was told that the defendant was working as a casual decoration worker earning around 2-3k per month prior to the arrest. I will order the defendant to be fined $500 in relation to charge 2, to be paid within 3 months of his release from the present prison term.