HKSAR v. Wong Kwai Shing

DCCC570/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 570 OF 2010

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to theft, contrary to section 9 of the Theft Ordinance. The theft in question concerned a pickpocket.

2.You admitted that on 19 April 2010 at the staircase of Exit E1, MTR Mongkok Station, Mongkok, Kowloon, you stole one mobile phone, the property belonging to a 17 year old girl by the name of Hui Tsui-yi.  On that day at 7 pm, Madam Hui was going up the stairs of the exit of the MTR and one eyewitness, Mr Som, saw you stretching your left hand into her right front pocket of her trousers and take away her mobile phone.  You then fled away immediately.

3.Mr Som confirmed with Madam Hui that the mobile phone had gone missing and he, his friend, Mr Ng and Madam Hui immediately chased after you.  Mr Som chased you until he reached the ground floor of One Ground Tower at 639 Nathan Road.  At that address he grabbed hold of you and although you struggled you were subdued by him and Mr Ng.  During the struggle, Madam Hui’s mobile phone fell out from your possession onto the ground.  The mobile phone, I am told, was valued at about $2,900.  A report was made to the police and you were arrested immediately at the scene.  Under caution you admitted the offence and asked for a chance.

4.Mr David Ma, your counsel, has mitigated fully and thoroughly on your behalf today and I have taken into account all that he has had to say for you.  You are aged 52 and have been to court on 27 separate occasions to which of those occasions you have been convicted of 33 separate offences.  Of those offences you have 12 offences for attempted theft, seven for attempted theft and of those relating to theft five are related to pickpocketing.  You have offences of loitering, insulting behaviour to the Magistrate, assault occasioning actual bodily harm, possession of instrument fit for unlawful purpose and contempt of court. 

5.Mr Ma accepts that the Court of Appeal have laid down guidelines for pickpocketing offences and in mitigating on your behalf he says there are really only two aggravating factors in this case, to which I agree with him, and those are, firstly, your bad criminal record and the fact that this offence was committed in a crowded area being the Mongkok MTR.  He recognises that the greatest mitigating factor in this case is your plea of guilty.

6.As to your background, you came to Hong Kong in 1980 as an illegal immigrant under the “Touch Based Policy”.  You have been working as a casual construction worker but have been unable to hold a stable or permanent job.  Whilst you are unemployed you receive CSSA.  You are single and have no children.  He has indicated that you admitted this offence from the time you were arrested and you informed the prosecution of your plea about 10 days ago. 

7.As Mr Ma rightly states, the case of HKSAR v  Ngo Van Huy Cr App No. 107/2004 is the guideline case for pickpocketing.  The Court of Appeal case and the present case, your case before me, I can say is almost on all fours as to the facts.  The only difference in the Court of Appeal case from this case is the fact that the prosecution in that case asked for an enhancement of sentence and they have not done so in this case.  Guidelines are of course not a strait-jacket for the sentencing court but the court, particularly myself, are bound by what the Court of Appeal says.  As I indicated, this case is on all fours with the Court of Appeal case and therefore it is of very strong guidance to me in sentencing you.

8.This is a case of a pickpocketing in the Mongkok MTR at 7 pm and as one all knows Mongkok Station of its own is crowded, let alone at 7 pm which is the rush-hour time after work.  It was fortunate that the eyewitness was able to see you committing this offence.  You are not, of course, new to the offence of theft or pickpocketing.  Your record demonstrates that you are a persistent and a habitual offender and have spent many many years in prison.  It appears that the sentences that have been passed upon you have been completely ignored by you. 

9.As is clearly stated in the Court of Appeal case, pickpocketing offences are viewed as very serious offences in Hong Kong.  In crowded places like the MTR, people and everybody gets jostled and pushed around and it is an ideal opportunity for pickpocketors like yourself to ply their trade and this is exactly the place where you did so.  This must be stopped.

10.In passing sentence upon you, defendant, I take a starting point of 15 months’ imprisonment.  From that starting point I feel that a substantive increase on account of your bad previous record for theft is required.  A deterrent sentence for you as well as the protection of society dictates that and I add another 9 months to the 15 months’ imprisonment.

11.There also exists the aggravating feature that the offence was committed in a crowded area, that is the MTR in Mongkok and add another 3 months to that sentence. 

12.The sentence for you, therefore, comes to a total of 27 months, however, I give you full credit for your plea of guilty and giving you one-third discount the sentence is then 18 months’ imprisonment to which you are so sentenced.