HKSAR v. Fung Suet Ching and Another

DCCC579 & 639/2012

(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 579 & 639 OF 2012 (CONS)

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Reasons for Sentence

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1.Both defendants have pleaded guilty to the charges they face today.

2.The 1st defendant has pleaded guilty to Charge 1, a theft charge, contrary to section 9, to which she is jointly charged with the 2nd defendant.  Both, on 2 May this year, stole an iPhone from a shop in Kwai Chung Plaza, belonging to a shop assistant working that day.

3.Charge 2, the 1st defendant admits that she attempted to escape from lawful custody the next day.

4.Charge 3, the 1st defendant admitted attempting to have in her possession a pistol without a licence.

5.The facts are that on 2 May, both defendants were, in fact, caught red-handed by a plainclothes police officer who, thinking they looked suspicious, kept them under observation.  They were caught red-handed stealing the victim’s iPhone.

6.This police officer watched both defendants enter the shop.  The 1st defendant had a baby strapped to his chest.  The 1st defendant distracted the shop staff when her back was turned to the defendants whilst looking for clothes for the 1st defendant.

7.At that moment, the 1st defendant indicated to the 2nd defendant, using hand signals, that it was safe for him to steal. The 2nd defendant reached into a drawer at the cashier counter and stole the staff member’s iPhone. He then left the shop, followed shortly by the 1st defendant.

8.The police officer who had watched the entire course of events intercepted the 1st defendant, but the 2nd defendant left the scene with the baby.

9.When the 1st defendant was intercepted, she dialled her mobile phone and said, “Husband, I have been intercepted by the police.  You better return the phone as soon as possible.”

10.She was arrested for theft and denied the offence under caution.  She told this police officer that she was pregnant.

11.The 2nd defendant, not long after, returned the iPhone to the victim and fled the scene.  He ultimately surrendered himself to the police in July.

12.At the time of this offence, he was, in fact, a wanted person.  He was in breach of a condition of police bail:  he had jumped bail for a wounding case.

13.The 1st defendant was detained by the police after her arrest and on the next day claimed that she was unwell.  Police escorted her to Princess Margaret Hospital to seek medical treatment.

14.Whilst waiting for a doctor, she said she needed to use the toilet.  A woman police officer took her to the toilet.  Once inside, she told that officer she did not need to use the toilet any more.

15.Both the defendant and the WPC left this toilet and, just outside, the defendant suddenly pushed this WPC away with both her hands.  However, the woman police officer still managed to grab the defendant’s arm before she could run away.

16.A struggle then ensued.

17.The 1st defendant then grabbed the WPC’s pistol grip in both her hands.  That pistol was in its holster at the WPC’s waist. The defendant tried to pull it out.

18.The WPC grabbed her pistol with one hand and tried to push the defendant away with the other.

19.A security guard came to assist the WPC and also helped grabbed the defendant.  This security guard was able to pull the defendant’s hand off the gun grip at his first attempt.

20.This was all in the space of one to two seconds. The leather holster, in that short period of time, had been opened.

21.The WPC did suffer an injury during the struggle, but it was not serious.

22.Those are the facts of the three charges.

23.The 1st defendant is 30 years old whereas the 2nd defendant is 35. They are not married to each other but they have had a child who, at the time of the offence, was 8 months old. The child is now just over 1 year old.

24.Both defendants’ best mitigation is their plea of guilty today.

25.Neither defendants have clear records.  The 1st defendant has a previous conviction for a drugs offence in 1997 and in her antecedent admits she is a heroin addict who has been treating her addiction with methadone since 2009.  The 2nd defendant has 12 previous convictions:  some involve dishonesty, which is similar to Charge 1; the others consist of offences involving violence or dangerous drugs.

26.In mitigation, I have received from the 1st defendant two letters, one written by friends who are also social workers, signed by 20 persons.  What it says is that they are surprised the 1st defendant has committed these offences.  They confirm the defendant assists with voluntary work and is helpful and kind in nature and they ask for leniency on her behalf.

27.The second letter is from a district councillor, Mr Chow Wai-hung, whose letter, in short, is similar to the first letter.

28.Defence counsel has elaborated in mitigation that she committed the 2nd and 3rd charge in the hospital because she was anxious as she was separated from her baby.  She saw an opportunity to try and run away from custody and she panicked.  She did not plan to grab the WPC’s weapon; it all happened in the heat of the moment.

29.I have heard mitigation put forward on behalf of both defendants.  I have also considered the facts of the case.

30.Where Charge 1 is concerned, it is a joint enterprise.  It was pre-meditated and pre-planned.  The plan was to distract the shop staff and steal whatever was valuable, in this case, an iPhone.  An iPhone is easy to resell for quick money.  The facts of this case carried out by the 1st and 2nd defendants show it was not an opportunistic shop theft.

31.Where Charges 2 and 3 are concerned, there are no tariffs where facts such as these exist.  Of course, there are guidelines where one is in possession of a gun, but this case, the defendant was not found in possession of a pistol.

32.I accept that it is very likely the 1st defendant, as a mother of a young child, was desperate and anxious due to her separation from the child.  She saw an opportunity to run and took the opportunity, albeit a futile one.  I accept she panicked and I accept she did not try very hard to grab WPC’s weapon.  I say that because it was easy for a witness to prise her hand away quickly, but nonetheless, she went for a WPC’s weapon and managed to get the holster off.

33.This act was very foolish.  The defendant must have realised the serious consequences of her act and a term of imprisonment would be appropriate for such an act, but I will consider, as I have said, that she acted foolishly and irrationally as opposed to with forethought and planning.

34.I have considered mitigation, as I have said, the facts of the case, your pleas and background.  I have also considered the reasons given by the 1st defendant’s counsel for her actions at the hospital.

35.For Charge 1, I will take a starting point of 15 months’ imprisonment. Both defendants will be given a discount of one-third, which is 5 months, for their pleas today.

36.The 1st and 2nd defendants are for Charge 1 sentenced to 10 months’ imprisonment.

37.The 1st defendant, for Charge 2, I take a starting point of 9 months’ imprisonment and discount this by one-third, which is 3 months, for her plea today.

38.For Charge 2, the 1st defendant is sentenced to 6 months’ imprisonment.

39.For Charge 3, I take a starting point of 12 months’ imprisonment.

40.You get a discount of one-third, which is 4 months, for your plea, and you are sentenced, 1st defendant, to 8 months’ imprisonment.

41.For Charges 2 and 3, I will order them to be served concurrently.  That is a total of 8 months’ imprisonment.  Of this 8 months, 4 months will be served consecutively to Charge 1 and 4 months concurrently.

42.For all three charges, the 1st defendant is sentenced to 1 year and 2 months’ imprisonment.

43.For the 2nd defendant, he is presently serving a term of imprisonment for Tsuen Wan 1770/2012.

44.I order today’s term of imprisonment to be served consecutively to that Tsuen Wan case.

COURT: Do you understand that?

INTERPRETER: D1 and D2 understand.