HKSAR v. Tsui Chiu Kwai

DCCC 1020/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1020 OF 2012

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

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

Reasons for Sentence

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

1.The defendant pleaded guilty to one charge of ‘attempted theft’. Particulars of the charge are that he on 6^th October 2012 at the off-course Betting Branch of the Hong Kong Jockey Club at no.45 Argyle Street in Mongkok attempted to steal from one Mr. Xie Hongwei.

Summary of facts

2.Xie was at the betting branch at 5:50pm watching horse-racing. His black wallet was placed inside the zipped left pocket of the shorts that he was wearing.

3.2 plainclothes Police officers were on duty at the material time inside the branch and saw the defendant holding a newspaper wandering around and looking at the trousers pockets and backpacks of customers inside the branch. The defendant himself did not place any bets.

4.The race started shortly afterwards and the branch was crowded with customers watching the race. While Xie was focused on the horse racing, the defendant approached him from his left and pulled open the zipped left pocket of Xie’s shorts while pretending to be reading a newspaper.

5.When the defendant successfully unzipped the pocket and took Xie’s wallet out, one of the 2 plainclothes Police officers immediately grabbed the defendant’s hand together with the wallet and declared his Police identity. The defendant was then arrested and cautioned. The defendant remained silent.

Previous convictions

6.The defendant has 33 convictions from 31 previous court appearances. 22 are for theft or attempted theft, 9 of which are theft by pickpocketing. The last conviction was in the District Court on 17^th October  2011 when the defendant was sentenced to 20 months’ imprisonment for pickpocketing. He was last released from detention on 14^th September 2012.

Mitigation

7.The defendant is 50 years old, born in china, educated up to primary 4 level. He was unemployed prior to his arrest. He immigrated to Hong Kong in 1979. Although the defendant is married and has 2 daughters, he had lost contact with them since 2009. The defendant now lives alone.

8.The defendant tried to find a job after his last release from jail but was not able to do so. The defendant has parents aged over 80 living in China and he would send them money whenever he has some.

9.The social worker did assist the defendant in applying for social security after the defendant’s last release from imprisonment but the defendant had committed the present offence before the first payment had yet be paid out to him.

10.Mr. Tang for the defendant pointed out that this is a straightforward pickpocketing case although it did happen at a crowded place. The property involved is not of great value. The statement of the victim said the wallet was worth about $30 with about $103 inside together with an identity card. The defendant will try to learn some skills in future to try to get back on his feet.

Sentencing cases

11.For first offenders of the offence of pickpocketing, the guideline sentence is between 12 and 15 months’ imprisonment as the initial starting point: HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.

12.The choice of sentence within that range is within the discretion of the trial judge, taking into consideration the circumstances of the case such as the age or vulnerability of the victim: HKSAR v Ngo Van Huy, supra; HKSAR v Chiu Suet Yee, Angel, CACC 105 of 2010.

13.Mr. Tang for the defendant very helpfully referred me to the case of HKSAR v Tsui Chiu Kwai, CACC 452 of 2011, where the defendant in our present case was the applicant.

14.There the applicant pleaded guilty to a charge of theft and was sentenced to 20 months’ imprisonment. The circumstances of that case was the applicant removed a roll of banknotes totaling $380 from the trouser pocket of a 73 year old lady who was shopping in a market in Mongkok at around 5:40pm. The applicant was caught red handed.

15.The learned trial judge adopted a 15 months initial starting point, added 12 months’ imprisonment for the applicant being a persistent offender and a further 3 months’ imprisonment for the offence being committed in a crowded place, resulting in the final starting point of 30 months’ imprisonment. The Court of Appeal upheld this starting point as well as the final sentence of 20 months’ imprisonment.

16.The Court of Appeal considered that the addition of 12 months’ imprisonment for the applicant being a persistent offender entirely appropriate, particularly given the fact that the applicant committed the fresh offence within 2 months of his release from prison for the previous offence he was sentenced for.

Sentence

17.The maximum sentence for theft under s.9 of the Theft Ordinance is that of 10 years’ imprisonment and under s.159J of the Crimes Ordinance, the respective inchoate offence would carry the same maximum sentence.

18.I find first of all that it was not a chance pickpocketing. The defendant had obviously chosen the betting centre to look for potential victims because he knew the gamblers would be engrossed in their gambling and be particularly vulnerable to pickpocketing. I find that the circumstances of the case call for an initial starting point of 15 months’ imprisonment, applying the guidelines in HKSAR v Ngo Van Huy.

19.I find that the fact that the defendant is a persistent offender and that he had committed the present offence just 23 days after his last release from prison for the sentence he served in CACC 452/2011 a factor to take into consideration when deciding how much to add on for being a persistent offender. I find that an appropriate addition to the initial starting point based on this aggravating factor is that of 12 months’ imprisonment.

20.I find that the offence was committed in a crowded public place and would increase the initial starting point by another 3 months’ imprisonment based on this aggravating factor.

21.The overall total starting point is therefore that of 30 months’ imprisonment. I will grant the defendant the full one-third discount for his guilty plea and sentence him to 20 months’ imprisonment.