HKSAR v. Au Kin Wah

DCCC1238/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1238 OF 2011

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Reasons for Sentence

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The Charges

1.The defendant originally faced four charges of theft and attempted theft, which were contrary to section 9 of the Theft Ordinance, Cap.210.

2.He pleaded guilty to and was convicted of Charges 1 to 3.  Charge 4 was eventually left on court’s file and not to be proceeded with without the court’s leave. 

The Facts

3.The facts of this case could be summarised as follows.

Charge 1: Theft

4.At around 1800 hours on 30 September 2011, when Lau Wing-keung, aged 62 (“PW1”) went shopping outside a supermarket at No. 95 Kweilin Street, Sham Shui Po, Kowloon, Hong Kong, the defendant bumped on him from behind.  Moments later, PW1 found that his wallet in the right pocket of his trousers had gone missing and had lost the items contained therein and as particularised in Charge 1.  The presence of the defendant was recorded by the CCTV installed outside the said supermarket.    

Charge 2: Attempted Theft

5.On 6 October 2011, when PC58604 (“PW2”) was on an anti-pickpocket patrol in plainclothes at Sham Shui Po, he saw the defendant standing behind three customers who were choosing goods at the hawker stall No. 23 at Kweilin Street.  Shortly, the defendant stretched his right hand towards the right trousers pocket of a middle-aged woman.  As and when the woman turned around to leave the stall, the defendant retracted his hand and left the scene.

Charge 3: Attempted Theft

6.Later, the defendant was seen standing behind another three customers outside the hawker stall No. 31, also at Kweilin Street.  He then stretched his right hand towards the right jacket pocket of an elderly woman.  As the woman turned around to leave, the defendant retracted his hand immediately. 

7.PW2 intercepted and arrested the defendant. Under caution, the defendant admitted the offence of theft in Charge 1 and said that he had spent all money stolen as he was too poor, but he denied the other offences.     

Background of the Defendant

8.The defendant, age 55, was a labourer.  He has 29 convictions, mostly theft-related.  He began to indulge himself in pick-pocketing trade when he was 19 years old.  For the subsequent 36 years, he had committed similar offences for over 20 times and had been in and out of prison on numerous occasions.  His last conviction was in June 2010, where he was sentenced in the District Court to 16 months’ imprisonment for a similar offence.

9.He is undoubtedly a professional and repeat pickpocket.  His conviction record can be described as appallingly bad.  He was not in the least repentant.  About six months after he was released from the prison on 8 March 2011, he again committed the present offences.  There was nothing much the defence counsel could mitigate on his behalf except his guilty plea.       

Sentencing Guidelines

10.The Court of Appeal in HKSAR v Ngo Van Huy, CACC107/2004, remarked that:

“(1) Theft by pick-pocketing 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 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 to 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...

(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...

(d) Where the accused is a repeat offender or worse still, a persistent one...”

Initial Starting Point

11.The Court of Appeal in HKSAR v Chiu Suet Yee, Angel, CACC105/2010, held that:

“In selecting an initial starting point within the 12 to 15 months range, the sentencing court will need to avoid double counting, that is taking into account a matter later considered to be an aggravating factor enhancing the starting point of sentence.”

12.As far as Charge 2 is concerned, there was nothing unusual in the circumstances of the case and this court is prepared to adopt an initial starting point of 12 months’ imprisonment. 

13.Nevertheless, the fact that elderly victims were involved in Charges 1 and 3 would put the case at the higher end of the range.  Hence, an initial starting point of 15 months’ imprisonment would be justified. 

Aggravating Factors

14.The aggravating factors of this case were that the offences were committed in crowded public areas and that the defendant is a repeat offender. 

15.In respect of the latter aggravating factor, the Court of Appeal in Ngo’s case said that:

“The defendant was a repeat offender, or a persistent one. Where there were repeat offences of the same kind, the defendant’s previous record was likely to be an aggravating feature where this demonstrated in particular either the need to impose a deterrent sentence (the previous ones not having apparently had this effect) or the need to protect society from criminals like him. Where a poor previous record for similar offences existed, the court would be justified in imposing a substantially higher sentence.”

16.In our case, the defendant is an habitual criminal. Since 1977, he had been before the Magistrates’ Courts and the District Court on 29 occasions in relation to some 38 offences.  Of these offences, 25 have been for theft or attempted theft.  Sentences he had received for the theft-related offences include prison sentences ranging from 2 months to 18 months.   

17.Taking together his appalling previous record for theft and the present offences into consideration, an enhancement of 9 months’ imprisonment would be appropriate. 

18.The fact that the offences were committed in a crowded public area would warrant a further enhancement of 3 months’ imprisonment. 

Final Starting Point

19.Consequently, the final starting point of sentence for Charge 2 would be 24 months’ imprisonment, and for Charges 1 and 3, 27 months’ imprisonment.

20.Such sentences would be reduced by one-third for the defendant’s guilty plea to 16 months and 18 months’ imprisonment respectively. 

Concurrent and Consecutive Sentences

21.All offences were separate and distinct offences committed on two different days.  Charge 1 was committed on 30 September 2011, whereas Charges 2 and 3 were committed on 6 October 2011. 

22.Having considered all the circumstances of the case, including the criminality of the offences and culpability of the defendant and the totality principle, this court will therefore order the sentence of 16 months’ imprisonment on Charge 2 and 18 months’ imprisonment on Charge 3 to run concurrently.    

23.However, sentence in Charge 1 should run partly consecutive to Charges 2 and 3.  This court will order that 9 months of the sentence on Charge 1 are to run consecutively to the other sentences, thus arriving at a totality of 27 months’ imprisonment. 

Please refer to CACC68/2012 for the relevant appeal(s) to the Court of Appeal.