HKSAR v. Zhan Hua and Others

DCCC 420/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO. 420 OF 2011

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Reasons for Sentence

1.All 3 Defendants pleaded guilty to charge 1 and 3, they pleaded not guilty to charge 2 which is now left on Court’s file, not to be proceeded with without the leave of the Court. Charge 1 is the charge of pick-pocketing of PW1’s wallet. Charge 3 is obtaining property by deception that they used PW1’s credit card to buy 4 bottles of perfume.

2.At around 1:50 p.m. on 1 March 2011, the police saw the 3 Defendants acting furtively, they approached PW1 and stood around him for a short while.

3.At about 1:55 p.m. PW1 found his wallet was missing.

4.The 3 Defendants took the MTR to Pacific Place.

5.At about 2:50 p.m. D2 bought 4 bottles of perfume at $1,616 with a  Visa Card belonged to PW1. 

6.When D2 left the shop and joined D1 and D3 outside the shop, they were all stopped and arrested.

7.Upon search, the followings were found in D1 to D3’s possession:-

(a) D1 has no cash with him;

(b) D2 possessed PW1’s 4 credit cards , the 4 bottles of perfume from Crabtree & Evelyn and one credit card merchant slip.

D2 had US$8 and HK$190.

(c) D3 possessed PW1’s wallet , RMB3,291 and HK$31,970.

8.Under caution, D1 admitted that he was responsible for pick-pocketing. He handed over the stolen wallet to D2 and the money in the wallet to D3.  In Pacific Place, D2 entered the shop while he stayed outside. 

9.Under caution, D2 remained silent.

10.Under caution, D3 stated that after D1 had stolen the wallet, D1 handed him the money and the wallet. 

11.D1 to D3 are Mainlander. They all have clear record.

D1 – has separated from his wife, his 11 years old daughter lives with his wife. He worked as a chef and earned RMB$1,000 per month.

D2 - he is 45, divorced, his 12 years old son lives with his former wife. His elderly father suffered for heart disease. He is an estate agent before the arrest.

D3 - 49, divorced. He is a businessman earned about $2,000 per month in China.

12.In Mitigation, I am told that all 3 Defendants came to Hong Kong for sight-seeing.

13.There is guideline for the offence that the 3 Defendants have committed.  Both the Prosecution and D1’s Counsel refer me to the case of HKSAR v. Ngo Van Huy CACC 107/2004 that 12-15 months is the appropriate starting point for the 1^st time offender of pick-pocketing.  However, in considering whether to adjust the sentence upwards, aggravating features should be considered.

14.In the present case, the offence was taken place in a crowded place.  We all knew that Time Square is a busy place especially during the lunch hour.

15.The offence was committed in conjunction with the others. 

16.The 3 Defendants formed as a team that they each had a role to play to steal PW1’s wallet.  D1 pick-pocketed PW1’s wallet.  D2 received the wallet. D3 received the money from the wallet.

17.It showed that it was well-planned.  I disagree that they came to Hong Kong for sightseeing purpose.  Pick-pocketing required certain skills and experience.

18.It was indicated in the fact that PW1 was not aware that his wallet which was kept inside the waist bag had been pick-pocketed.  The 3 Defendants surrounded PW1 to form as a wall that even a team of experience police officers could not see what had been taken place.  The action only took a brief moment before the 3 Defendants entered the MTR and proceeded to  Pacific Place.

19.After stealing PW1’s wallet, D2 used PW1’s credit card to purchase 4 bottles of perfume which costs about $1,600.

20.They were Mainlanders; they came to Hong Kong to commit the offences. 

21.It was through the experience police officers’ observation and to stop the 3 Defendants in time , otherwise PW1’s wallet , all his cards and money would never be found again.

22.It would cause him a lot of inconvenient to report lost and to replace those cards, especially ID card, re-entry permit and driving licence.

23.The proper inference was that it also stopped the 3 Defendants from further use of PW1’s credit cards and to reduce further loss either to the Bank or to PW1.

24.To this extend, having considered the nature of the case, the 3 Defendants’ guilty plea and mitigation, I considered that starting point of 15 months is appropriate for Charge 1.  I further added additional 3 months for the aggravating factors, that they acted in concert to steal in a crowded place, I also add an extra 3 months because they came to Hong Kong from Mainland to commit the present offence.  It arrives at 21 months.  Because of their guilty plea, I reduce to 14 months.

25.As to Charge 3, D1’s Counsel has referred me to Ho Chi Shing DCCC 767/2010 in which there is a thorough analysis of different cases of using stolen credit cards.

26.In the present case, the value involved is $1,600.  I therefore take a starting point of 2 years reduced to 16 months.  6 months in Charge 3 to be run consecutively to Charge 1.

27.The total sentence for D1, D2, D3 is 20 months.