HKSAR v. Choi Ping Chiu and Another

DCCC719/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.719 OF 2010

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Reasons for Sentence

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The first defendant was charged with:

· 4 counts of theft contrary to section 9 of the Theft Ordinance Cap 210 (Charge 1, 2, 4, 7);

· 1 count attempted theft contrary to section 9 of the Theft Ordinance Cap.210 and section 159G of the Crimes Ordinance Cap.200 (Charge 5)

· 1 count of assaulting police officer contrary to section 63 of the Police Force Ordinance, Cap.232 (Charge 9)

The second defendant was charged with:

· 1 count of handling stolen goods contrary to section 24 of the Theft Ordinance Cap.210 (Charge 6);

· 1 count of possession of identity cards relating to others, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap.177 (Charge 8);

· 1 count of assaulting a police officer contrary to section 63 of the Police Force Ordinance Cap.232 (Charge 10)

The first and the second defendant were jointly charged with 1 count of theft contrary to section 9 of the Theft Ordinance Cap. 210 (Charge 3)

The first defendant pleaded guilty to charge 1, 2, 3, 4, 7, 9; and admitted the facts, he was convicted accordingly.

The second defendant pleaded guilty to charge 10 and admitted the facts, she was convicted accordingly.

Upon the application from the prosecution, the rest of the charges were put on court file and not to proceed without leave.

Facts

At 2:30am on 2 February 2010, D1, D2 and a wanted person boarded taxi KA1446 driven by the victim. The victim put his wallet in the pit of the driver door. During the journey, D1 who sat behind the victim distracted the attention of the victim and took opportunity to steal the $850 and the octopus card inside the said wallet. (Charge 1)

At 10:50pm on 26 February 2010, D1, D2 and 3 wanted person boarded taxi KG4740 driven by the victim. D1 sat next to the victim in the front. During the journey, he used a piece of newspaper to block the victim’s view and took the opportunity to steal $630 from the dashboard. The victim discovered his monies was missing, and managed to keep D2 inside the taxi, and reported to Police. D1 later returned to the scene; and the defendants were arrested. D1 was found in possession of $1340. (Charge 2)

At 1:00am on 26 March 2010, Mak Sin-yeung met his girlfriend Chau Wing-gi (Chau), D1, D2 and Ah Nam at a hotel room, they are friends to each other. Inside the room D1 borrowed Mak Sin-yeung’s mobile phone for use and left. Mak then found his wallet containing $200, his ID card, his Home Visit Permit and an ATM card was missing from Chau’s handbag. Chau also found her wallet containing $150, her ID card, her re-entry card, her student card, her resident card and ATM card missing from her handbag. At 12 noon, D1 and D2 returned, when Mak and Chau demanded for their properties, D1 stated the properties had been taken away by Ah Nam and took them to President Centre where D1 only returned the ID card, re-entry card, student card and resident card to Chau but he did not mention the rest of the properties. (Charge 3 and 4)

At 8:15pm on 20 April 2010 D1 and D2 boarded a taxi JU2630 driven by the victim. D1 sat next to the victim in the front, on arrival, he used a piece of newspaper to block the victim’s view and stole $570 from the cushion of the driver’s seat. The defendants were intercepted by Police who found them getting off the taxi in a suspicious manner. D1 was found holding the stolen monies in his hand. (Charge 7)

The defendants were taken to police station. At about 3:20am on 21 April 2010, DPC 6712 and WPC 57159 intended to take fingerprint from the defendants. D2 turned emotional upon being told by DPC6712 that they could not be released on bail. D2 refused fingerprint lifting, shouted, and tried to bump against PC6712 and kicked the chairs. On hearing the noise, 5 police officers including SPC 17553 went to the room offering assistance. The Police officers pressed D2 and stopped her. At this moment, D1 suddenly stood up and shouted, “don’t touch my wife”. He bumped against SPC 17553’s right body twice. D2 jumped onto a table and shouted, “I am pregnant; you hit my husband”. D2 then kicked SPC 17553’s right thigh. The defendants were finally subdued. SPC 17553 did not sustain any injury. (Charge 9 and 10)

As in the case of pick-pocketing, though no fault of their own, personal properties close to the victims were being stolen without their notice, I noted that here did not involved any trespass to person, yet these are premeditated theft. I consider the appropriate starting point for the theft charge 1, 2, 3, 7 to be 12 months imprisonment, while charge 4 to be 9 months; and that for the assaulting police officer charges to be 3 months.

Mitigation

The defendants are boyfriend and girlfriend.

The first defendant aged 33, unemployed and lives with his family. The defendant is willing to compensate the victims in full. The first defendant has 19 previous convictions in which 13 counts of theft, 4 counts of fraud, 7 counts concern dishonesty and a number of other counts concern violence, drugs and dutiable commodities. The defendant had been sent to training center, DATC and prison, yet he committed further offences shortly after he was released from prison. Apart from that the defendant committed further offences and has 3 more convictions earlier this year for offences committed in October 2009, November 2009 and February 2010; and the earliest release date of the last 3 convictions is December 2010.

I consider the first defendant to be a persistent offender. His criminal record suggests that previous sentences imposed on him are simply no deterrent to him. I consider this amount to an aggravating feature, and need to impose a deterrent sentence on the defendant. I consider and increase the starting point of the theft charges by 6 months.

The first defendant was on police bail when he committed the present offences, I consider this to be a further aggravating factor and increase the starting point for the theft charges by another 3 months.

The offences committed by the defendant are serious, long term imprisonment upon conviction should be anticipated by him. I do not consider that the defendant expects his child on 3 September amount to a mitigating factor.

The defendant entitled to 1/3 discount for his plea. I do not consider there to be any mitigating factor call for further deduction. These are all separate offences. However, taking into account of the totality consideration, I order the sentence to run partly concurrent and partly consecutive, making a total of 32 months imprisonment consecutive with his current sentence.

The second defendant aged 21, without a stable job, with history of psychiatric problem, lives with her family. The defendant has 5 previous conviction records; and she was ordered to serve probation order and DATC order.

The second defendant entitled to 1/3 discount for her plea. She is now pregnant and expects the childbirth on 3 September. Further taken into account that the defendant has been remanded for this case from 20 April to 6 August, I consider a nominal fine is appropriate in her case.

Order

The first defendant

The second defendant

Charge 2 fined $200 to be deducted from her bail monies.

1st Defendant's leave to appeal against sentence to Court of appeal granted. Please refer to CACC312/2010 dated 10 August 2011