HKSAR v. Zeng Cuimei and Others

DCCC909/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.909 OF 2010

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Reasons for Sentence

1.D1 faces charges 1 (theft), 3 (theft), 5 (theft), 8 (theft), 11 (theft), 13 (theft), 14 (theft), 15 (theft), 16 (theft), 17 (theft), 19 (theft) and 20 (going equipped).

2.D2 faces charges 2 (handling), 4 (handling), 6 (handling) and 18 (handling).

3.D3 faces charges 7 (theft), 8 (theft), 9 (theft), 10 (theft), 12 (theft), 13 (theft), 15 (theft), 16 (theft) and 17 (theft).

4.The defendants pleaded guilty to all their respective charges, admitted to the amended summary of facts and were duly convicted.

Summary of facts

5.In May and June 2010, Police received a number of reports of pick-pocketing which had been committed in the Shamshuipo and Mongkok area between 24^th May and 7^th June. The cases all had female victims, the pick-pocketing was committed when the victims were shopping at a crowded place and the properties were stolen from handbags which had been slit open.

Charge 1 and 2 against D1 and D2 respectively

6.At around 10am on 24^th May, when madam Hung, aged 52 (PW1) was shopping at Argyle Street near Canton Road in Mongkok, D1 cut open her bag and stole the items set out in charge 1. D1 then gave the coupons to D2. When D2 received those coupons, she knew they were good stolen by D1.

Charge 3 and 4 against D1 and D2 respectively

7.At around 09:15am on 26^th May 2010, when madam Chan aged 46 (PW2) was shopping at Tai Nam Street near Pei Ho Street in Shamshuipo, D1 opened her bag and stole the items set out in charge 3. D1 then gave the Park’n’Shop card to D2 who knew it was stolen by D1 when she received it.

Charge 5 against D1 and charge 6 against D2

8.At around 8:50pm on 26^th May, when madam Yan, aged 27 (PW3) was shopping at Fa Yuen Street near Bute Street in Mongkok, D1 cut open PW3’s handbag and stole the properties set out in charge 5. D1 then gave the Park’n’Shop cards to D2 who knew they were stolen goods when she received them.

Charge 7 against D3 only

9.At around 4pm on 5^th June, when madam Chung, aged 22 (PW4) was shopping at Fa Yuen Street, Mongkok, D3 cut open her handbag and stole her Nokia mobile phone valued at HK$1,800 (SP5).

Charge 8 against D1 and D3

10.At around 4:30pm on 5^th June, when madam Kwong, aged 21 (PW5) was shopping at Fa Yuen Street, Mongkok, D1 and D3 jointly picked her pocket. One of them acted as a lookout whilst the other cut open PW5’s bag and stole her Sharp mobile phone ($4,500). The phone was then kept by D3.

Charge 9 against D3 only

11.At around 7pm on 5^th June, when madam Chong, aged 40 (PW6) was shopping at Fa Yuen Street in Mongkok, D3 cut open her bag and stole her mobile phone ($2,000) (SP7).

Charge 10 against D3 only

12.At around 10:15am on 6^th June 2010, when madam Sunarish, aged 60 (PW7) was shopping at Pei Ho Street Market in Shamshuipo, D3 cut open her recycle bag and stole her mobile phone valued at $1,200 and her wallet containing cash of $400.

Charge 11 against D1 only

13.At around 12:30pm on 6^th June, when madam Cheung, aged 72 (PW8) was shopping at Pei Ho Street Market, Shamshuipo, D1 cut open her recycle bag and stole the properties set out in charge 11.

Charge 12 against D3 only

14.At around 2pm on 6^th June, when madam Lau, aged 33 (PW9) was shopping at the junction of Nam Cheong Street and Un Chau Street in Shamshuipo, D3 cut open her handbag and stole her mobile phone ($2,000) (SP10).

Charge 13 against D1 and D3

15.At around 2pm on 7^th June, when madam Mudrikah, aged 24 (PW10) was shopping at Pei Ho Street Market in Shamshuipo, D1 and D3 jointly picked her pocket. One of them acted as a lookout whilst the other cut open PW10’s handbag and stole her mobile phone (SP11). The phone was then kept by D3.

Charge 14 against D1 only

16.At around 7pm on 6^th June, when madam Tsoi, aged 18 (PW11) was shopping at Fa Yuen Street near Mongkok Road in Mongkok, D1 stole her coin handbag containing cash of $106 and a personal Octopus card (SP12).

Charge 15 against D1 and D3

17.At around 09:30am on 7^th June, when madam Saima, aged 34 (PW12) was shopping at Kweilin Street near Pei Ho Street in Shamshuipo, D1 and D3 jointly picked her pocket. One of them acted as a lookout whilst the other stole PW12’s mobile phone ($800) (SP13). The phone was then kept by D3.

Charge 16 against D1 and D3

18.At around 3pm on 7^th June, when madam Yip, aged 48 (PW13) was shopping in Fa Yuen Street in Mongkok, D1 and D3 jointly picked her pocket. One of them acted as a lookout whilst the other stole PW13’s mobile phone ($1,800) (SP14).

Charge 17 against D1 and charge 18 against D2

19.At around 4pm on 7^th June, when madam Chu, aged 51 (PW14) was shopping at Bute Street in Mongkok, D1 cut open PW14’s bag and stole the properties set out in charge 17. D1 then gave the Park’n’Shop card to D2 who knew it was stolen goods when she received it.

Charge 19 and 20 against D1 only

(i) Surveillance of the defendants

20.At around 09:36am on 8^th June, PC53473 (PW15), PC2985 (PW16) and PC49150 (PW17) saw D1, D2 and D3 at Tai Nan Street junction of Kweilin Street. When the 3 defendants arrived at Pei Ho Street Market, they parted ways. PW15, 16 and 17 then split up in order to follow respectively D1, D2 and D3.

(ii) Arrest of D1 and admission under caution

21.When PW15 was following D1 to 1/F of the said Market, he saw D1 approached madam Leung, aged 73 (PW18), from behind. D1 took out a towel to cover her left hand, put her left hand into a recycled bag carried by PW18 and took out a wallet from the recycle bag. PW15 immediately stopped D1. PW18 was unaware that her wallet had just been stolen until she was told by PW15 about the incident. The wallet was then shown to PW18 who positively identified that the wallet belonged to her. D1 was arrested and cautioned for theft. Under caution, D1 verbally admitted to the offence in Punti.

22.Upon a search of D1, a razor blade wrapped in a white tissue was found in the right front pocket of the trousers of D1. When asked why the razor blade was there, D1 replied that it would be used to slit open people’s handbags, but that she had never used it before. PW15 declared arrest of D1 for going equipped with intent to steal. Under caution, D1 replied that she had never used the razor blade.

23.The above admissions were post recorded in 2 written record of interview.

(iii) Arrest of D2, seizure of items from D2 and admission under caution

24.PW16 followed D2 into the Market. D2 was seen having her eyes on the bags of the passersby. After a while, D2 and D3 met up outside the Market and attempted to leave by taxi. D2 was stopped by PW16 for enquiry.

25.After a brief enquiry, PW16 conducted a search of the handbag carried by D2. PW16 found SP1, SP2, razor blade with a plastic cover and one bundle of 5 keys (the key).

26.D2 was arrested and cautioned for theft and going equipped with intent to steal. Under caution, D2 said, “I had no work in China and got no money so I came here to steal. I am sorry and I won’t do it again. Please give me a chance.”

(iv) Arrest of D3

27.PW17 followed D2 into the Market. D3 was also seen to be paying attention to the bags of the passersby. D3 left the Market and met up with D2 outside. D3 was stopped by PW17 for enquiry when she was about to leave by taxi. D3 was arrested and cautioned for theft by PW17. Under caution, she denied the offence.

Previous convictions

28.D1 has 1 previous conviction in 2004 for criminal damage. It is a spent conviction. D2 and D3 each has a clear record.

Mitigation

D1

29.D1 is now 44, has all along been unemployed and a housewife. She was divorced many years ago and has to look after her 10 year old son in China. Because D1 is unemployed, she received a government subsidy of around RMB1,300 per month. D1 has 1 previous conviction but it is a spent conviction.

30.D1 is remorseful for what she had done, she pleaded guilty to all 12 charges . D1 promised through her legal representative that she will not re-offend.

D2

31.D2 is 20, had been unemployed of about 2 years. She used to work as a salesperson. D2 became unemployed because she was admitted into a government hospital for about 4 months for nasal cancer of the initial stage. The court is told that she is now cured, although there is a possibility that it may relapse within 5 years’ time.

32.D2 is single and lives with her father who is 49 in China. She has to look after her grandma who is 80 years old. her father had been forced to retire due to company closure and therefore D2 and her family was in financial difficulty and they had been relying on support from other family relatives. The defendant has pleaded guilty to 4 counts of handling stolen goods, she is remorseful and undertake not to re-offend in the future.

33.Medical record of D2 for the treatment of her nasal cancer and letter she had written submitted.

D3

34.D3 is 49, she was a farmer earning about RMB300 per month. She had had no education. She suffers from high blood pressure and gall stones. All her medical records are kept in China and so cannot be produced here in Hong Kong. D3 is married and she was taking care of her husband, 59, in China who had suffered a stroke and needs medical attention.

35.D3 has 2 sons and 2 daughters but they are all married. D3 pleaded guilty to 9 counts of theft and she is remorseful for what she had done and undertake not to reoffend.

Sentencing guidelines

36.The sentencing guidelines for theft by pick-pocketing is found in the case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1:

“9.  In our view, the following guidelines and principles for this type of offence should now be made clear (and it is to be noted they differ somewhat from the way the Judge approached the matter) : -

(1) Theft by pickpocketing can be regarded as the 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 case [sic] 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.

(2) The guideline sentence of 12-15 months after trial is therefore appropriate for a first time offender.  This is an immediate custodial sentence, not a suspended one.

(3) Of course, account must be taken of the existence of any aggravating, or particular mitigating, features before the court.

(4) Aggravating features include : -

(a) The presence or use of a weapon (such as a razor-blade or knife used to cut open, say a handbag or, worse still, intended to be used on the victim) : - see Vy Van Kien.

(b) Where the offence is committed in a place in which the public is at particular risk, such as crowded places like the MTR or the racecourse, crowded shopping areas where the pedestrian traffic is heavy.

(c) If the accused commits the offence in conjunction with another, the sentence should be higher.  Where he is part of an organized and professional ring of thieves a substantial increase in sentence may be called for : see HKSAR v Rang  Zhi Tai and Another, unreported, HCMA 7/1999, 25 March 1999, Court of First Instance; HKSAR v Ho Minh Cong, unreported, HCMA 547/1999, 23 September 1999, Court of First Instance.  For example, where professional pickpockets from overseas (whether individually or in a group) come to Hong Kong to carry out this type of activity (no doubt tempting owing to the number of crowded places here), an increased sentence can be imposed : - see R v Saldana Alca Jose and Another, unreported, CACC 655/1996, 19 August 1997.  In giving the judgment of the Court of Appeal, Patrick Chan J made the following remarks about organized pickpocketing :

“We take this opportunity to indicate that in our view, because of their seriousness, organized crimes of this nature including group pickpocketing, even without international ramifications, might in future properly attract a starting point of at least 2½ years’ imprisonment”.

(d) Where the accused is a repeat offender or, worse still, a persistent one : - see R v Chiang Pok Wing, unreported, HCMA 589/1996, 25 July 1996, Court of First Instance; HKSAR v Huynh Van Dung, unreported, HCMA 270/2001, 21 June 2001, Court of First Instance.

(5) We should just elaborate on the aspect of an accused’s previous convictions as being an aggravating feature.  It used to be at one stage sentencing policy that a person would not receive an increase in sentence by reason only of a poor record of like offences.  The passage of the judgment of Penlington JA in Vy Van Kien at 427 C-D provides an example of this.  Rather, the accused would simply not receive any discount from which a person of clear record might benefit.  This has now changed.  Sentencing policy in Hong Kong (and, it should be noted, elsewhere in the world including the United Kingdom and Australia) recognizes that where there are repeat offences of the same kind, a person’s previous record is likely to be an aggravating feature where this demonstrates in particular either the need to impose a deterrent sentence on the particular accused (the previous ones not having apparently had this effect) or the need to protect society from criminals like him : - see the judgment of Stuart-Moore V-P in HKSAR v Chan Pui-chi [1998] 2 HKLRD 830, at 833-4.  Where a poor previous record for similar offences exists, a court will be justified in imposing a substantially higher sentence : - see Chan Pui-chi at 833 F-I, referring to R v Billam & Others (1986) 82 Cr App R 347.

(6) Where, such as in the present case, an application is made to enhance the sentence under section 27 of OSCO by reason of the increased prevalence of the crime of theft by pickpocketing, it will, where the prevalence is proved, be appropriate for the court to enhance sentence.  As we have observed above, this particular form of theft can properly be regarded as a serious offence and as a matter of public policy, a meaningful and deterrent sentence should be imposed.  Where it has become increasingly prevalent, an enhancement of the sentence is therefore entirely appropriate.  In this particular case, the figures we have seen show an alarming increase.  The Judge ordered an enhancement of 25% (no doubt as this was the figure suggested by Government Counsel who appeared before him), but the figures available to us indicate that a greater increase is justified.  In our view, enhancing the sentence by ⅓ would be appropriate.”

37.I was also referred to the case of HKSAR v Liao Mei and others, CACC 432/2004 by legal representative of the defendants. In that case, the three Applicants came to Hong Kong from mainland China and operated as a pick-pocketing gang. The police observed them crowding around a young woman at Sham Shui Po MTR station. When the train arrived they boarded the train with her. On the train they stood close to her and the 1st Applicant removed a mobile phone from the victim’s rear jeans pocket and immediately passed it to the 2nd Applicant. They were stopped and arrested. The police recovered the stolen phone from the 2nd Applicant’s front jeans pocket. They were jointly charge with one count of theft.

38.All 3 applicants were of clear record. In sentencing the Applicants, the learned trial Judge took a starting point of 2½ years’ (30 months) imprisonment for each of them. He reduced that by one-third to 20 months to reflect their guilty pleas, and then enhanced that figure by 50% in accordance with section 27 of the Organized and Serious Crimes Ordinance (OSCO), Cap.455 on the basis of the prevalence of the offence, taking the sentence back to one of 2½ years (30) months. This sentence was eventually reduced to 26 months upon appeal.

39.It is noted that in our present case the prosecution is not seeking an enhancement of sentence under OSCO and I do not have any statistics on the prevalence of the offences before me.

40.Both Ngo Van Huy and Liao Mei involved just 1 count of theft, whereas here we are dealing with 11 charges of theft and 1 charge of going equipped to steal for D1; 4 counts of handling for D2; and 9 counts of theft for D3 (with charges 8, 13, 15, 16 and 17 being joint charges for D1 and D3).

41.In Ngo Van Huy, the appellant had an appalling criminal record (which led to a substantial increase of the starting point of 9 months), while in Liao Mei the appellants had clear record. In our present case, only D1 has a minor record and it dated back to 2004 while D2 and D3 are both of previously good character in Hong Kong.

Sentence

42.First of all, I have heard from Mr. Lo the background circumstances of the 3 defendants. Although I do sympathize with their plights, they do not amount to significant mitigating factors and I have not given much weight to the in arriving at my sentence. The strongest mitigating factor is the defendants’ guilty plea, which will be recognized by way of the usual one-third discount.

43.The defendants committed most of the thefts and handling charges within an intense 3-day period. While charge 1 was committed on 24^th May and charge 3 on 26^th May, the wave of pick-pocketing started in earnest on 5^th June.

44.Charges 7, 8 and 9 were committed on 5^th June at 4pm, 4:30pm and 7pm respectively.

45.Charges 10, 11, 12 and 14 were committed the following day on 6^th June at 10:15am, 12:30pm, 2pm and 7pm respectively.

46.Charges 13, 15, 16 and 17 were committed the next day on 7^th June at 2pm, 09:30am, 3pm and 4pm respectively.

47.Charge 19 was committed on the next day on 8^th June shortly after 09:36am. The defendants were then stopped by the Police and arrested.

48.The defendants committed their various offences with alarming audacity. The targets were all female, mostly carrying recycled bag where their bags would be cut or opened and stolen from. The 3 defendants form a well rehearsed gang with nothing in their mind but to steal as much as they can while they are in Hong Kong.

49.I find that in terms of criminality and culpability, the 3 of them were operating as one entity and the eventual sentence should reflect this fact.

D1

50.In relation to D1’s 11 theft charges, I will first of all adopt an initial base starting point of 15 months’ imprisonment for each of the 11 charges, the reason being that, as in Ngo Van Huy, The circumstances of the theft in the present case puts them at the higher end of the range.

51.There also exists the aggravating feature that the offences were committed in crowded areas. I will add another 3 months to each of the 11 sentences taking it to 18 months’ imprisonment.

52.Furthermore, the defendants were clearly operating as an “organised and professional ring of thieves” and “a substantial increase in sentence” is called for. In Ngo Van Huy, the Court of Appeal cited with approval the comments of Patrick Chan J (as he then was) in R v Saldana Alca Jose and Another ,CACC 655/1996:

“We take this opportunity to indicate that in our view, because of their seriousness, organized crimes of this nature including group pickpocketing, even without international ramifications, might in future properly attract a starting point of at least 2½ years’ imprisonment.”

53.Considering the circumstances of the case, I will add 12 month’s imprisonment to the 18 months on the 11 charges and come to the final starting point of 30 months’ imprisonment. I will reduce the sentence by one-third in recognition of D1’s guilty pleas, sentencing her to 20 months’ imprisonment on each of the 11 theft charges.

54.In relation to charge 12, I will adopt a starting point of 15 months’ imprisonment, reducing it to 10 months’ imprisonment in recognition of her guilty plea.

55.Given the fact that the offences were committed in quick succession, I will order that 4 months of charge 1 be served consecutively while the rest of the sentences for the remaining 11 charges be served concurrently, making the total sentence that of 24 months’ imprisonment.

D2

56.For the 4 handling charges of D2, as I had mentioned above, I find that the defendants were acting as an organized gang of thieves each playing a different role at different times and there should not be any distinction in their culpability.

57.For each of the 4 handling charges, I will also adopt a starting point of 30 months’ imprisonment, reducing them to 20 months’ imprisonment in recognition of D2’s guilty pleas. I will order 4 months of the sentence in charge 2 be served consecutively to the rest of the sentences which will be served concurrently, taking the total sentence to that of 24 months’ imprisonment.

D3

58.For the same reason in relation to culpability mentioned above, I will also adopt a starting point of 30 months’ imprisonment for each of the 9 theft charges of D3, reducing them to 20 month’s imprisonment in recognition of D3’s guilty pleas. I will order that 4 months of charge 7 be served consecutively to the rest of the sentences which will be served concurrently, taking the total sentence to that of 24 months’ imprisonment.