HKSAR v. Au Wai Kit

DCCC 1228/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1228 OF 2010

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REASONS FOR SENTENCE

1.The defendant stands convicted after trial of two charges of attempted theft contrary to section 9 of the Theft Ordinance, Chapter 210 and section 159G of the Crimes Ordinance, Chapter 200.

2.Both charges concerned attempted pickpocketing of ladies handbags in Mongkok, one in August 2010 and one in September 2010, which was committed whilst on bail for the August offence.  Full particulars of both offences are set out in the reasons for verdict delivered earlier today. 

3.In HKSAR v NGO Van Huy [2005] 2 HKLRD 1 as applied in HKSAR v DUONG Van Dung & others CACC 284/2004 the Court of Appeal confirmed the guideline sentence for pickpocketing after trial is 12 to 15 months imprisonment for a first offender, where there are no aggravating features.

4.Aggravating features include where the offence is committed in a place in which the public is at particular risk, such as crowded areas where the pedestrian traffic is heavy and where the accused is a persistent offender.

5.I am satisfied that the initial starting point after trial on charge 1 is 12 months imprisonment and 15 months imprisonment on charge 2 by reason of the fact Madam Cheng was 79 years of age (see HKSAR v CHIU Suet-yee, Angel CACC 105/2010). 

6.Charge 1 was committed in the early evening in Mongkok, at a time when the streets were crowded.  Although the police officers were unable to say how many other persons were in front of the snack shop Miss Shui accepts this is an aggravating feature.  I am satisfied the starting point on charge 1 is to be increased by 3 months to 15 months imprisonment.    

7.The same cannot however be said in respect of charge 2.  Although also committed in Mongkok, near to where the first offence was committed, the time was in the morning and the evidence does not show this to be a busy time.  The defendant here was clearly taking advantage of the old age of Madam Cheng, which factor I have already taken into account in determining the initial starting point.

8.Charge 2 was however committed after the defendant was arrested and bailed in respect of charge 1.  Commission of offences on bail is an aggravating feature of sentence.  I increase the starting point on charge 2 by 3 months to 18 months imprisonment. 

9.The defendant has a total of nine convictions six of which involve dishonesty.  Significantly none are for pickpocketing.  The only dishonesty offence for which he has received a prison sentence was one for blackmail when he was sentenced in 2006 to 12 months imprisonment.  Whilst the record is not good I am of the view applying the principles in the decided cases this is not an appropriate case to increase the starting points by reason of the defendant being a repeat offender.   

10.The two offences are separate and distinct for which consecutive sentences are appropriate.  I am satisfied a total sentence of 2 years imprisonment properly reflects the defendant’s criminality on the two charges.

Sentence

11.The defendant is sentenced as follows:

Charge 1– 1 year and 3 months imprisonment

Charge 2 – 1 year and 6 months imprisonment

9 months consecutive and 9 months concurrent to charge 1