HKSAR v. Chan Sui Ki

DCCC 1129/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1129 OF 2012

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Reasons for Sentence

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1.Defendant has pleaded guilty today to two charges, the first being attempted theft contrary to Section 9 of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200. And the 2nd charge being one of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap. 221.

2.The facts of the case are very straightforward. The defendant was on an MTR train on 22 May 2009.  He was seen by another passenger targeting a foreign passenger.  That witness saw the defendant unzip the foreigner’s shoulder bag and insert his hand into the bag.  The foreigner had no idea that this was happening.  Before the defendant took anything out, he realised the witness had seen him and immediately withdrew his hand.  This is a classic attempt to pickpocket a victim.  The defendant then alighted from the train and boarded a separate train.  However, this passenger followed the defendant and called the police.  Defendant was arrested at another station by police officers.  Under caution, the defendant denied the offence.

3.Subsequently, on 9 July 2009, the defendant failed to appear in Eastern Magistracy as required by his bail conditions. 

4.Some just over three years later, the defendant was re-arrested at the Lo Wu Immigration Terminal as he re-entered Hong Kong from mainland China.

5.Defendant is 53 years old.  He is not a man of clear record.  He has nine previous convictions of which five relate to offences of dishonesty.  Clearly most of those offences are offences similar to this one, pickpocketing.  He is a persistent offender but these offences are spread over a period of time since 1983.  He has been imprisoned on several occasions.

6.I have been given an explanation today as to why the defendant jumped bail in the year 2009, his wife in China was pregnant at that time, so the defendant did not want to be incarcerated when his wife gave birth.  She gave birth to a daughter who is now aged 3 years old.  The defendant says he has come back to Hong Kong because he wants to start afresh, expressing his remorse and now realising he wants to be responsible to his family and young child.  Defendant’s plea today is his best mitigation.

7.Defence counsel has referred me to the leading authority where pickpocketing offences are concerned, that of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  In that authority the Court of Appeal says that for a first-time offender a starting point of 12 to 15 months would be appropriate after trial.  That authority then sets out where aggravating factors exist, the starting point should be increased.  I will not repeat what the Court of Appeal considers aggravating factors but the relevant one here is where an offender chooses a target in a very public crowded place such as the MTR.  I have taken that authority into account.  However, in this case the defendant is not a first-time offender so he will not be treated as leniently to a starting point of 12 to 15 months.

8.As for the 2nd charge, that of jumping his court bail, this is not the second time a warrant has been issued for his arrest.  In 1987, I take into account it was some time ago, for a theft offence the defendant was sentenced to 12 months’ imprisonment in San Po Kong Magistracy and in that case a warrant had been executed for his arrest.  I have taken into account why he jumped bail in this case and how long he absconded for and knowing when he returned to Hong Kong he would have to face a term of imprisonment.

9.After careful consideration of the facts of this case, the mitigation put forward, the authorities submitted, defendant’s previous record and his plea today, for charge 1 I take a starting point of 21 months’ imprisonment.  Defendant has pleaded guilty, he is entitled to a discount of 7 months.  For charge 1, he is sentenced to 14 months’ imprisonment.

10.For charge 2, I will take a starting point of 9 months’ imprisonment.  Defendant is entitled to a discount of 3 months for his plea.  For charge 2, defendant is sentenced to 6 months’ imprisonment. 

11.Of this 6 months, 4 months will be served consecutively to charge 1, 2 months concurrently.  That would make a total sentence of 18 months’ imprisonment.