HKSAR v. Chan Man Wai

DCCC204 & 297/2012
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 204 & 297 OF 2012 (CONS)

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Reasons for Sentence

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1.In this case the defendant Chan Man-wai is charged with, pleaded guilty to and convicted of one count of attempted theft and one count of theft.

Charge 1

2.According to the facts admitted by him in open court, at about 6:35 pm on the 0^th day of July 201l, the defendant was seen first walking along Nathan Road near Mongkok. He was seen going up to a shopping mall to look for victims.  After his accomplice alerted the defendant the presence of a possible victim, the defendant then moved behind the victim at an escalator and used his right hand to unzip the victim’s bag.  At that point the victim moved, the defendant retreated his hand.  Then the victim left the mall, followed by the defendant and his accomplice. 

3.The defendant and the accomplice were seen to be discussing and then speeding up to reach the victim at the junction of Dundas Street and Sai Yeung Choi Street.  Again the defendant touched the victim’s shoulder bag from behind and unzipped it.  During all this time, unbeknown to the defendant, he was watched by a team of police officers in anti-crime patrol. He was then arrested.

4.The victim confirmed that nothing had gone missing from her bag but that the zip of her bag had been undone by someone. 

Charge 2

5.It occurred on the 14th day of March at about 2 pm inside an MTR train at Kowloon Tong MTR Station.  The victim was alerted by a civic-minded citizen that the defendant had stolen her phone.  The victim immediately checked her jacket where she kept her phone and confirmed that it had gone missing.   At the same time she saw the defendant leave the MTR train.  The victim and her husband then proceeded to stop him.  During the struggle then ensued, the victim’s phone dropped from the defendant and fell to the floor.  The matter was reported and he was subsequently arrested.

Sentencing

6.These two offences are commonly known as “pickpocketing” in Hong Kong.  In crowded places teaming with shoppers and tourists, these offences are rampant.  The Court of Appeal in the past had already set down very clear sentencing guidelines for offences of this nature.  The most important case is Ngo Van Huy, (Criminal Appeal No.107 of 2004), where the Court of Appeal pointed out that offences of this kind were serious and condemned by the society.  Such offences justified a heavy penalty in the form of a term imprisonment of 12 to 15 months after trial, even for first offenders. The sentence should be immediate.    However, if the court finds other aggravating circumstances, it should also add to the starting point.

7.The Court of Appeal then set out four examples, three of which are relevant here.  Firstly, the offence was committed in a place where public was particularly at risk.  As it is commonly known that Mongkok on a Saturday night are crowded, busy, full of shoppers and tourists, it is a place where the pedestrians are particularly at risk.  Secondly, in the present case it involved an accomplice.  The defendant was acting in concert.  Thirdly, the defendant in this case is a repeated offender.  Up to now he had no less than seven records of pickpocketing.   He had been put on suspended sentence, a term of imprisonment, and DATC.  The last conviction was in 2009 where he was sentenced to 14 months’ imprisonment for attempted theft. 

8.So in this case, in accordance with the guidelines, this court ought to consider a higher starting point.

9.The defence lawyer has helpfully submitted another case for the reference of this court.  In Chan Mei Yee Carman, CACC447/2009, the Court of Appeal had an opportunity of reviewing the line of authorities on pickpocketing.  The particular facts of this case which bore similar features to the present one. The appellant, a repeated offender, had attempted to commit a case of pickpocketing in concert with others. The Court of Appeal discussed and distinguished a number of cases of a similar nature and concluded that for offences of this kind and decided the appropriate sentence should be 30 months’ imprisonment. 

10.In respect of the 1st charge, having read the judgment for the case of Chan Mei Yee, I can see no reason to depart from the aforesaid guideline since the present case involves offence of the same nature and the presence of similar aggravating circumstances.  So in respect of the 1st count, I adopt a 30 months’ imprisonment as a starting point. 

11.In respect of the 2nd count, similar considerations apply although here there was evidence of an accomplice being present. However, for the 2nd count, the defendant had committed the offence while he was on bail in respect of the first offence.  This is not a factor recognized by the court as a reason for adopting a higher starting point for offences of this nature.   Nonetheless, this is a factor I should consider when exercising my discretion on whether or not to order a concurrent sentence for the two counts. In the absence of an accomplice in the 2nd count, I would therefore adopt 24 months as a starting point. 

12.I turn then to consider the mitigating factor in this case.  Prosecution has furnished this court with an antecedent statement, and his lawyer has said whatever that could be said on his behalf.  The fact is he is a mature man; he has a long list of previous convictions.  These are no other valid factors of mitigation.  His lawyer has also put forward his family background, the support of his family and his sickness for me to consider.  None of them constitute valid mitigating factor.  The only valid mitigation in this case is the fact that he pleaded guilty.

13.In accordance with the usual practice, I would therefore reduce the sentence by one-third to reflect his guilty plea.  For the 1st count, he is sentenced to 20 months’ imprisonment.  For the 2nd count, he is sentenced to 16 months’ imprisonment.

14.I turn to consider whether I should order a concurrent sentence.  These are two separate offences with the added aggravating factor that he committed the second offence after he was arrested for the first.  However, if the sentence is to run consecutive, he will be serving a very substantial term of imprisonment of 36 months.  The court must also consider the total length of sentence.

15.Having considered the facts as a whole and all the factors put forward by his counsel, I order that 6 months of the 2nd count to run consecutive to the 20 months of the 1st count.  In all, he is to serve a term of imprisonment for 26 months.

16.I have considered all other factors which might justify my exercise of further discretion of clemency.  By reasons of the authorities referred to, it will be wrong in principle if I suspended the sentence.  Nor from the defendant’s record, his personal circumstances are there special factors which might justify such an unusual course. Therefore, the defendant is to serve these 26 months immediately.