HKSAR v. Chung Tat Hung

DCCC1286/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1286 OF 2011

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Reasons for Sentence

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The charge

1.The defendant pleaded guilty to an offence of theft under section 9 of the Theft Ordinance, Cap.210.  Such offence was in the nature of pick-pocketing. 

The facts

2.The facts of the case can be summarised as follows.   At about 10.20 am on 24 August 2005, PW1 first saw a taxi stopping at a junction of Nathan Road and Shan Tung Street.  Suddenly, the taxi reversed for two cars’ length and then made a left turn into Shan Tung Street, where some pedestrians were crossing.

3.Due to the unexpected and sudden movement of the taxi, those pedestrians were made to halt abruptly and had precipitated a chaotic situation. 

4.Amongst the pedestrians, there were PW2, his wife and three sons.  When they were in the middle of the road crossing the said taxi suddenly approached and stopped in front of PW2.  PW2 had to pull his son and step backward.  As he was stepping back he was bumped once from behind.  PW1, another pedestrian, witnessed the defendant standing about one foot behind PW2 and using a white towel to wrap his right hand and took out a wallet from PW2’s right rear trousers pocket.  The defendant then walked away.

5.Shortly, PW2 discovered his wallet containing his Hong Kong Identity Card, Home Return Permit, cash of $2,350 and an Octopus Card with the value of $50 had gone missing. 

6.On 2 February 2006, the defendant was subsequently arrested and he denied the offence under caution.  He was positively identified by PW1 in the identification parade.  After the identification parade, the defendant was released on police bail but he absconded and left Hong Kong for the Mainland on 9 March 2006. 

7.On 19 October 2011, the defendant was rearrested by the police when he returned to Hong Kong.   

The defendant’s background and mitigation

8.The defendant, aged 58, has two daughters aged 35 and 6 by different marriages.  He had been to the Magistrates’ Courts and District Court on 18 occasions relating to some 23 offences.  Of these offences, eight were dishonesty related including three pick-pocketing.  As early as in 1969, the defendant has his first conviction of dishonesty.  His last conviction was in November 1993, whereupon he was sentenced in the Magistracy to 10 months’ imprisonment for a theft charge.

9.Although, he had not been in trouble with the law for 11 years prior to this offence, he could still be described as a repeat offender.  He had been in and out of prison on numerous occasions ranging from 2 months to 3½ years. 

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 theitems 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.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.    

Aggravating factors

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

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

“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.”

15.Taking into account of the previous record of the defendant and the present offence into consideration an enhancement of 3 months would be appropriate.

16.The fact that the offence was committed in crowded public areas where the pedestrian traffic was heavy would warrant a further enhancement of 3 months’ imprisonment. 

Final starting point

17.Having fully considered the circumstances of the case and of the defendant, mitigation put forward by the defence counsel and the tariff set out by the Court of Appeal, this court will adopt the final starting point of sentence for 18 months.  Such sentence would be reduced by one-third for the defendant’s plea of guilty to 12 months’ imprisonment. 

18.There were no other circumstances which would justify further reduction in sentence.  As such, this court now orders a 12 months’ imprisonment.