HKSAR v. Leung Kiu Sun

DCCC1028/2011
DCCC602/2010
(heard together)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO. 1028 OF 2011 & 602 OF 2010

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Reasons for Sentence

1. The defendant pleaded guilty to one charge of theft and one charge of failing to produce proof of identity on demand.

Facts

2. At around 11:20am on the charge date, while the victim was standing in line outside a Chinese BBQ shop at no.45 Ho Pui Street, Tsuen Wan, a plainclothes Police officer saw the defendant unzipped the rucksack of the victim from behind and reached inside to take the coin bag particularized in charge 1 and then walked quickly away.

3.The defendant was intercepted by the Police officer who arrested and cautioned him. The defendant failed to produce proof of his identity upon demand by the officer. Upon search, no document of identity were found on the defendant.

Criminal Records

4.The defendant has 29 previous convictions, 22 of them relating to theft or attempted theft. There is also one previous conviction for failing to produce proof of identity. He was last released from jail on 26^th April 2011.

5.In the previous case of DCCC602/2010, the defendant was convicted of 2 similar offences to the present case and was sentenced to imprisonment for the attempted theft charge and a fine of $500 for the failure to produce proof of identity charge. The defendant has failed to pay the fine within the prescribed time. He is not represented by Mr. Liu on this and had addressed the court directly, indicating that he has no money to pay the fine and wish for a term of imprisonment in lieu.

Mitigation

6.The defendant was born in China and came to Hong Kong in 1979. He is now 56 years old, living alone in a squatter hut in Shing Mun Reservoir Village. The defendant has been unemployed for a long time. He once worked as a casual worker earning about 3-4k per month. Although unemployed, the defendant did not apply for any welfare assistance. He would however borrow money from his friends. The defendant said he is remorseful and promised to lead a new life.

Sentence

Charge 1

7.Similar to DCCC 602/2010, this is a case of pick-pocketing and as such the guidelines set down in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 are applicable. Although the facts of our present case do not state that the scene of the crime was crowded at the time, the fact that the victim was lining up in front of the Chinese BBQ shop indicates that there must have been a number of people present. As such, the two aggravating factors present are the theft being committed in a crowded public place and the defendant’s lengthy criminal record.

8.The defendant committed the present theft within a few months of his last release from prison. He was however acting alone. I will adopt a basic starting point of 18 months’ imprisonment for the theft, then adjust it upwards based on the fact that it was committed in a public place as well as the defendant being a persistent offender and adopt the final starting point of 30 months’ imprisonment for charge 1.

9.I will grant the defendant the full one third discount and sentence him to 20 months’ imprisonment on charge 1.

Charge 2

10.In relation to charge 2, pursuant to s.17C of the Immigration Ordinance, Cap.115, I impose a fine of $700 to be paid forthwith, with 14 days’ imprisonment in lieu, to be served consecutively to his sentence in charge 1.

11.Since the defendant indicated clearly that he will not be paying this amount at all, I order that he serve this 14 days’ imprisonment and sentence him to 20 months and 14 day’s imprisonment.

DCCC 602/2010

12.In relation to the failure to pay his fine imposed for charge 2 in DCCC602/2010, I order that the defendant to serve 7 days’ imprisonment in lieu. I order that this 7 days’ imprisonment to be served consecutively to his term of imprisonment in charge 1 and 2 in DCCC1028/2011.

13.The defendant is therefore sentenced to a total of 20 months and 21 days’ imprisonment.