HKSAR v. Tang Yiu Wing

DCCC457/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 457 OF 2012

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Reasons for Sentence

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1.In this case the defendant faced one count of attempted theft, contrary to section 9 of the Theft Ordinance, Cap.210, and section 159G of the Crimes Ordinance, Cap.200.

2.He pleaded guilty to the charge and was convicted upon his plea and admission of facts.

Facts of the case

3.This is what is commonly described as a pick-pocket case.  The facts can be summarised thus.  At about 8 pm on 25th March 2012 the victim was lining up to pick up her food at a fast food restaurant in Sui Street, Kowloon.  The defendant was seen standing closely behind her, unzipping the handbag she was carrying and putting his right hand inside for about 20 seconds. Unbeknown to him he was observed by another customer in the fast food restaurant.  The customer then shouted to stop the defendant. Subsequently with the assistance of other passers-by, the customer managed to subdue the defendant before the police arrived. 

4.The female customer confirmed that before the incident the zipper of her bag was done up but after the incident it had been unzipped for around 4 inches. She also confirmed that nothing had been stolen from her handbag. 

The sentencing guidelines

5.The sentencing guideline for a pick-pocket case has been clearly set out in the case of Mo Wan Hui (Criminal Appeal 107/2004).  There the Court of Appeal remarked thus:

“In our view the following guidelines and principles for this type of offence should now be made clear.

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 the items stolen may not amount to much. The significant degree of inconvenience the relative case with which it can be affected by direct invasion of/or about a person and privacy of those minding their business in public places and the adverse reputation that this type of time 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 first time offender. This is an immediate custodial sentence; not a suspended one.”

6.Having set out the initial starting point, the Court of Appeal went on to identify aggravating features which would justify a heavier sentence.  They include:

“1. 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 use on the victim.

2. 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.

3. Where the offence was committed in conjunction with another person or where the accused was an organised - was part of an organised and professional ring of thieves.

4. Where the accused is a repeated offender or a persistent one.”

7.In this case I do not see any reason which might justify any departure from the established guideline. I will adopt 15 months as a starting point. 

The background of the defendant

8.The defendant is a 52 year old man.  He is married, divorced with two grown-up children.  He has a long list of previous convictions: he had been in court for no less than 23 times, 14 of which related to the offence of theft, 4 in particular related to pick-pocketing.  Not only the defendant cannot expect any additional leniency from this court by reason of his age and record, the fact that he is a repeated offender is one of the recognised aggravating factors in the aforesaid guideline. 

9.In addition I note that the offence was committed in a fast food restaurant at dinner time in Mongkok.  This, in my view, is a place where the public was particularly at risk.  So in the circumstances I will add 3 months for the fact that the offence was committed in a crowded public area and another 3 months for the fact that the defendant is a repeated offender.  

Mitigating factors

10.I then turn to consider the plea for clemency made by the defendant’s counsel.  I have been informed that the defendant had committed offences because he was subject to heavy financial as well as emotional strain.  The defendant had been staying in the same public housing estate unit with his divorced wife, but recently he had been told to evict the premises by the Housing Authority on 23 May 2012. 

11.In addition the defendant has aged and ailing parents who require his attention and financial assistance. According to defence counsel the defendant does have a girlfriend who is supportive of him. 

12.In my view none of these matters constitute any valid mitigating factor.  The only valid one in these circumstances is the fact that he pleaded guilty.  Accordingly he will be accorded with the usual one-third reduction of the sentence.

13.Having considered the facts of the case, the authorities the learned counsel drew my attention to, by reasons of matters I have alluded to, I will adopt 15 months as a starting point,  3 months will be added for the fact that it was committed in a public and crowded area, with an additional 3 months for the fact that he is a repeated offender: in total a term of imprisonment for 21 months. 

14.By reason of his guilty plea it will be reduced by one-third, therefore, the defendant is to be sentenced to a term of imprisonment for 14 months.