HKSAR v. Wong Ka Po and Another

DCCC569 & 739/2011
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 569 & 739 OF 2011

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Reasons for Sentence

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1.In this case, the 1st defendant has pleaded guilty to three offences of theft and one of obstructing a police officer; and the 2nd defendant, two offences of theft and one of assaulting a police officer.

2.The defendants have admitted the facts of the cases and I have convicted them of those offences.

3.The facts show that on the 1st charge, the 1st and 2nd defendants acted together to commit a theft.  This was at a premises called the “I Love Pet Pet” in Sham Shui Po in Kowloon.  It was on 25 April of this year and they went together to that shop, and whilst D1 distracted the cashier, the 2nd defendant went to the cashier counter and took the mobile phone of that person, that phone being valued at about $5,900, a smartphone.

4.In the 2nd charge, the 1st defendant was charged alone, but she acted again in concert with an unknown man to again steal a mobile phone valued at about $5,000.  This was at the Angie Nail Care shop, again in Sham Shui Po in Kowloon, and in that place, as I have said already, the 1st defendant and another man entered the premises, and it is apparent that the mobile phone was taken by them.

5.On the 3rd charge, the 1st and 2nd defendants again were charged jointly with the theft of a mobile phone.  This was at the Wing Run International Company in Sham Shui Po and that was on 3 May this year. They entered the premises and again, the 1st defendant made enquiries and the phone was stolen.

6.The defendants were apprehended outside the shop in respect of Charge 3 and the 1st defendant was taken to a rear lane in Pei Ho Street and, at that point, the 4th offence was committed and she used her right hand to grasp a recycled bag that had one of the phones in and tried to pull it away from the police officer.  She was asked to stop and she caused a scene. She screamed loudly and told she was under assault by police, alleged she was being framed, and struggled. It lasted for about eight minutes.  She was finally subdued.

7.Now, the 2nd defendant was also intercepted at the same time, also taken to the rear lane.  He used his left hand to hit a police officer’s right neck.  The police officer fell over.  The defendant fled.  He was caught again at a rear lane and the 2nd defendant apparently swung back at the police officer who was intercepting him, causing that person to fall to the ground.  This led to one of the police officer’s suffering from tenderness at his neck; abrasion at his right wrist, left elbow and knees; and was given four days’ sick leave.

8.There were records of interviews with both defendants, where they both made admissions to these offences.

9.Now, clearly, these facts support the charges that have been brought against them and show, in respect of both defendants, that an aggravating feature that they were acting in concert.

10.I have been given the antecedents of both defendants.

11.The 1st defendant is 27 years old.  She has a total of 11 previous convictions, of which 9 are similar.  She has been sentenced to a Drug Addiction Treatment Centre and has also received sentences of imprisonment.  Most recently on 11 November 2010 she received a sentence of 8 months’ imprisonment.

12.She had been working as a waitress but was unemployed at the time of her arrest.  She clearly has a poor criminal record, especially for cases of offences of dishonesty such as theft, although from the lengths of the sentences of imprisonment, it does not appear that she has been involved in offences as serious as these.

13.The 2nd defendant is aged 32 years.  He has a total of 24 previous convictions, 14 of which are similar.  He is currently under detention for a similar offence, with its earliest date of discharge between 17 November of this year.   This defendant has also been sentenced to sentences of Drug Addiction Treatment Centre and has a large number of sentences of imprisonment for theft, the longest being for 18 months imposed in 2006.

14.The defendant has worked as a transportation worker.  He is single, is alone, but does have a 10-year-old son who is presently at Po Leung Kuk.

15.I turn to the question of sentence for these offences.

16.These are sentences of these offences of theft committed by the defendants in concert.  In two of the offences they acted together.  The modus operandi in all the offences of theft the court faced today was the distraction of the cashier and then the stealing of a mobile phone.

17.I believe it is correct, in respect of those offences, to see them as being similar to pickpocketing, where sentences of between 12 to 15 months’ imprisonment as a starting point after trial would be appropriate for even a first-time offender.

18.In respect of both defendants, there are two aggravating features:  one is that they have previous poor records for offences of dishonesty, especially theft, and secondly, that they had acted in concert. They are both aggravating features.

19.My approach to sentencing in a theft offence would be as follows.

20.These are akin to pickpocketing offences, which would ordinarily require a starting point for sentence of 15 months’ imprisonment.

21.There are two aggravating features:  the previous criminal records of the defendants and their acting in concert.

22.I will add 3 months’ imprisonment to that starting point for each of those features, which brings in each offence of theft a starting point of 21 months’ imprisonment, and that is the appropriate starting point for each of those theft offences against each defendant.

23.They, of course, have pleaded guilty.  They are entitled to a discount of one-third from that sentence.

24.So it will be a sentence of 14 months’ imprisonment on each charge of theft as against each defendant.

25.These are not the only offences they face.

26.The 1st defendant faces an additional charge of obstructing a police officer.  This was an obstruction where she made serious allegations against the police and also was disruptive and difficult.

27.On the 4th charge as against the 1st defendant, I will take a starting point of 6 weeks’ imprisonment and reduce that to 4 weeks’ or 1 month’s imprisonment for her plea of guilty.

28.The 2nd defendant on the 5th charge is involved in an assault against the police, which led to injury to the police officer which would have resulted in having to take four days off work.

29.I will take a starting point of 3 months’ imprisonment.  I will reduce that to 2 months’ imprisonment for that defendant’s plea of guilty.

30.And I will have to consider how these sentences should have effect, having regard to the overall proper totality of sentence. They are all separate and independent offences and must, to some extent, be served consecutively, and I must keep the sentences within what is an overall proper total for each defendant.

31.I shall now deal with the 1st defendant.

(a) I shall order that on the 2nd charge, that 6 months of that sentence will operate consecutively to the 1st charge. That would mean 8 months would run concurrently to the 1st charge;

(b) on the 3rd charge, I will order that 5 months of that operate consecutively to the 1st and
2nd charges, and 9 months concurrently to those;

(c) for the 4th charge, 1 month of imprisonment will run consecutively to all other charges.

(d) This will result in an overall total sentence of
26 months’ imprisonment.

32.And for the 2nd defendant,

(a) I will order that 6 months’ imprisonment on the 3rd charge runs consecutively to the 1st charge and the balance of 8 months runs concurrently;

(b) the final sentence is that on the 5th charge. That sentence of imprisonment will run consecutively to the other charges, 1 and 3;

(c) this will lead to a total overall sentence for the 2nd defendant of 22 months’ imprisonment. This will run consecutively to his existing sentence.