HKSAR v. Lam Kwan Ching

DCCC 1356/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1356 OF 2011

--------------------

--------------------

REASONS FOR SENTENCE

1.The defendant has pleaded guilty to one count of theft, contrary to Section 9 of the Theft Ordinance, Cap. 210, the type of theft commonly referred to as ‘pickpocketing’. She was jointly charged with another defendant, who pleaded guilty at an earlier hearing before another judge and was sentenced to 1 year and 10 months’ imprisonment.

2.Facts admitted by the defendant disclose that at about 8.15 p.m. on 3^rd November, 2011, a patrolling plainclothes police officer spotted the defendant and her co-accused acting furtively at the junction of Portland Street and Nelson Street in Mong Kok, which was a crowded place, and kept them under observation.  He saw them walk close to a female outside Langham Place on Portland Street.  The female, Ms. Lie, was carrying a handbag on her right shoulder. They stood on either side of Ms. Lie.  The defendant’s co-accused stretched his left hand to open the magnet button of Ms. Lie’s handbag and took out a pink mobile phone from the handbag and passed the phone immediately to the defendant. Ms. Lie continued to walk towards Nathan Road whilst the two defendants walked in the opposite direction towards Langham Place. The plainclothes police officer followed the two defendants whilst summonsing assistance. He saw the defendant remove the cover, sim card and battery from the mobile phone. The defendant and her co-accused were subsequently intercepted and the mobile phone, together with its cover, sim card and battery were recovered from the defendant. Later that day, at 8.22 p.m., the mobile phone rang – it was a call from Ms. Lie. She subsequently came to the junction of Portland Street and Nelson Street where she positively identified the mobile phone to be her phone. The defendant and her co-accused were both arrested for the present offence. Under caution, the defendant claimed that she had picked up the mobile phone from the ground and kept it for her own use.  I have been informed by Defence Counsel that Ms. Lie was aged 19 years and the value of her mobile phone was HK$5,290.

3.The defendant is now aged 31 years. She has 2 previous court appearances with 3 previous convictions, all drugs related, the last in 2006.  This is her first offence of theft. Although in the antecedent statement it is recorded that she is a drug addict, I am informed by Defence Counsel that she is no longer a drug dependant.

4.It was urged upon me in mitigation by Counsel on her behalf that she had a supportive family – her mother was in Court today to show her support for the defendant, and she has also written a letter to the Court to seek leniency on behalf of the defendant.  The defendant used to help her mother in her mother’s fashion shop during the day. At night, she worked as a singer and dancer at banquets and functions – she was employed by a music production company.  The defendant herself has also written a letter in mitigation.  Her co-accused was her boyfriend of 2 months at the time of the offence.  She went for a walk with him at his request, and it was only when they were at the location where the offence occurred that she realised he was a pickpocket.  She did not stop him but assisted him out of her own greed – she wanted the phone for herself and she was influenced by him in what she did.  She is now very remorseful and promises that she will not re-offend.

5.In directing myself on sentence, I have considered the judgement of the Court of Appeal wherein the Court of Appeal laid down sentencing guidelines in respect of offences of theft by pickpocketing, the case of HKSAR v. Ngo Van Huy [2005] 2 HKLRD 1. In delivering the judgment of the Court, Hon Ma, CJHC, as he then was, said:-

“9. In our view, the following guidelines and principles for this type of offence should now be made clear (and it is to be noted they differ somewhat from the way the Judge approached the matter) : -

(1) Theft by pickpocketing 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 ease 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 12-15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 (such as a razor-blade or knife used to cut open, say a handbag or, worse still, intended to be used on the victim) : see Vy VanKien & Another [1991]HKLR 422.

(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.”

6.I have also considered the judgment of the Court of Appeal in HKSAR v. Chiu Suet Yee, Angel, CACC 105/2010, wherein the Court of Appeal re-affirmed the guidelines for pickpocketing offences as set out in HKSAR v. Ngo Van Huy, supra. McMahon J. in  delivering the judgment of the Court, said :-

“10. A preliminary question concerns which matters influence where in the normal starting point range of 12 to 15 months’ imprisonment after trial (before taking into account aggravating factors enhancing that starting point) a sentencing court should commence.

11. In our judgment that will depend on the facts of the case, that is, the circumstances of the theft itself, other than those matters which may be accounted for later as aggravating factors. Such matters as the value of any property stolen, the age or vulnerability of the victim and the expertise used in the theft will determine at what part of the range the appropriate starting point commences. Each case will be fact sensitive……

12. 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.”

7.Having considered the circumstances of the theft itself, including the age of the victim herein, namely 19 years, and the value of the mobile phone stolen, namely HK$5,290, and the expertise used in the theft, I find that there was nothing particularly unusual in the circumstances of the theft.  An appropriate initial starting point in my view is 12 months’ imprisonment. I find that there are aggravating factors to be considered.  Here, the offence took place in a crowded place, that area of Mong Kok being a crowded shopping area where the pedestrian traffic is heavy. That warrants an enhancement of 3 months’ imprisonment.  Also, the defendant was working in conjunction with her boyfriend, her co-accused.  That also warrants a further enhancement of 3 months’ imprisonment.  That results in a final starting point of 18 months’ imprisonment.  Save for her plea of guilty, there is little mitigation of weight before me.  I give her the usual discount of 1/3 for her plea and sentence her to 12 months’ imprisonment on the charge.