HKSAR v. Fung Chi Man

DCCC 145/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 145 OF 2012

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HKSAR

against

FUNG CHI-MAN

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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’.

2.Facts admitted by the defendant disclose that police officers on an anti-pickpocketing operation in the Mongkok area saw the defendant walking along on Argyle Street at around 6.15 pm on 3 January, 2012.  He then speeded up and stood very close behind a male who was carrying a shoulder bag at his back at Argyle Street near Tung Choi Street.  An outer pocket of the bag was unzipped.  The defendant opened the outer pocket with his left hand and inserted his right hand into that pocket and took a wallet out from it.  He was immediately intercepted by the police officers with the wallet still in his right hand.  He was arrested for theft and under caution admitted he stole the wallet out of greed as his son had fallen ill. The wallet contained the items as set out in the particulars of charge. The male was a Mainland tourist.

3.The defendant is now aged 43.  He has 18 previous convictions in 15 court appearances, dating from 1985, 11 of which are for offences of theft or attempted theft.  Three were specifically recorded as pickpocketing offences.  His last conviction, in April, 2011, was for an offence of attempted theft, pickpocketing, when he was sentenced to 8 months’ imprisonment. He was released from prison on 29 September, 2011.  The present offence was committed on 3 January, 2012, shortly after his release from prison.

4.It was urged upon me in mitigation by Counsel on his behalf that the appellant had been driven to commit this offence because he was unemployed after his last release from prison.  It was also submitted that he was remorseful, as was reflected by his plea, thereby saving the time of the court and the need for the prosecution witnesses to attend.  Although it is recorded in the Antecedent Statement that he is single, I am told by Defence Counsel that the defendant is a married man and lives with his wife and 2 children in a public housing estate in Choi Hung. His daughter is aged 22 years and working, while his 16 year old son is a Form 5 student.

5.In directing myself on sentence, I 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.”

The Court of Appeal also gave examples of aggravating features. Defence Counsel accepts that two of the aggravating features referred to by the Court of Appeal in Ngo Van Huy are present here – namely that the offence took place in Mongkok, a crowded shopping area where the pedestrian traffic is heavy, and which is frequented by Mainland tourists, and that the defendant is a repeat offender.

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 that the victim herein was a tourist here in Hong Kong, and the value of the stolen property as set out in the particulars of the charge and the expertise used in the theft, I find that the appropriate initial starting point is 15 months’ imprisonment.  I find that there are aggravating factors to be considered.  There has to be an increase on account of the defendant’s appalling record, the notable features of which I have set out in paragraph 3 above.  The need for a deterrent sentence for this particular defendant as well as the protection of society dictates the starting point of 15 months’ imprisonment be further increased. The offence took place in a crowded shopping area in Mongkok – that must be viewed as a further aggravating factor.  I therefore take a starting point of 27 months’ imprisonment on the charge.  Save for his plea of guilty, there is little mitigation of weight before me. I give him the usual discount of 1/3 for his plea and sentence him to 18 months’ imprisonment.