HKSAR v. Wong Kang Sun

DCCC 449/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 449 OF 2013

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REASONS FOR SENTENCE

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1.The defendant appeared before me this morning and pleaded guilty to a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.The particulars of offence avers that you on the 24 March 2013, outside Shop No F14, Ground Floor, Pei Ho Street Market, No 333 Ki Lung Street, Sham Shui Po, Kowloon, in Hong Kong, stole one card holder and two staff cards, the property belonging to Lo Chi Kuen.

The facts

3.The charge related to a pickpocketing incident on 24 March 2013.  At about 1757 hours, PW1 (SPC 52756) patrolled in Pei Ho Street Market, No 333 Ki Lung Street, Sham Shui Po, Kowloon, where he saw you outside a fish stall located at Shop No F14, Ground Floor of the market.

4.It was a crowded market and you were seen looking at the personal belongings of the passers-by.  You then followed Lo Chi Kuen, a male (aged 57), who carried a backpack on him.  You then extended your right hand and opened the zipper of the outer pocket of Mr Lo’s backpack.  You then extended your left hand into the outer pocket and took out one card holder which contained two staff cards.

5.The police officer saw this and immediately intercepted you and recovered all the stolen exhibits from your left hand.  You were immediately arrested and cautioned and you admitted that you did not have any money and hence you stole from the victim. 

Criminal records and background of the defendant

6.You have a long list of previous convictions, many involving dishonesty and, in particular, “pickpocketing” which I can consider as appalling.  You have altogether 41 convictions in the past involving 57 offences.  There are 21 convictions relating to “theft” and 8 relating to “pickpocketing”.  You have also 6 convictions relating to “robbery and aggravated robbery”. 

7.For the offence of “pickpocketing”, your last conviction was in 2007 where you were sentenced in the Magistrates’ Court to 10 months’ imprisonment. The sentences that you received for “pickpocketing” were mostly dealt with in the Magistrates’ Court ranging from 10 months to 16 months. 

8.You were born in Hong Kong in a working class family and you received only a Primary 3 education level.  You started working at the age of 14 to 15 years as a restaurant worker and then you changed to other jobs including delivery worker in the later years. 

9.Your counsel, Mr Chang, told the court that you started taking heroin at the age of 20 as you were young and ignorant and were influenced by some dubious peers.  That can be reflected in your other criminal convictions including three counts of “possession of dangerous drugs” and another three counts of “possession of dangerous drugs for unlawful trafficking”. 

10.Mr Chang told me, however, that you have abstained from taking heroin any more but you still use methadone these days.

Mitigations

11.In mitigation, Mr Chang properly conceded that looking at your record, you are of course a recidivist, a repeated offender.  You have committed the first pickpocketing offence as long as 18 years ago.  Mr Chang however reiterated to the court the fact that your last pickpocketing offence was committed in 2007 which was to your credit.

12.The present offence is also what he described as an opportunistic crime.  It is not sophisticated and it is a basic, simple pickpocketing which you did not use any implement and you just committed the offence alone without other people.  

13.Mr Chang had referred to the court the leading case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  In that case, the Court of Appeal had said that the guideline sentence of 12 to 15 months’ imprisonment after trial was appropriate for a first-time offender.

14.It was held by the Court of Appeal that the starting point could be further enhanced if there was presence of aggravating factors.  Those aggravating factors included presence or use of weapons, offences committed in crowded public places, offence committed in conjunction with another offence and where the defendant is a repeated or persistent offender.  The Court of Appeal also held that substantially higher sentence is justified where poor previous record for similar offence had existed.

15.Mr Chang also referred me to a case by the Court of Appeal in HKSAR v Tsui Chiu Kwai (unreported) CACC452/2011.  He referred to paragraph 15 of that judgment where it was held that the district judge’s choosing of 15 months as a starting point where the victim of offence was a 73-year-old woman was entirely appropriate.

16.Mr Chang then tried to distinguish that case with the present case in that the victim, Mr Lo, is younger, only aged 57.  Also, on account of his previous appalling records, Mr Chang agreed that in your case, a 9 months’ increase of the starting point is more appropriate in light of the authority of Ngo Van Huy and urged the court not to follow the example of the district judge in Tsui Chiu Kwai by increasing the starting point by 12 months. 

Sentencing considerations

17.“Pickpocketing” is a serious offence not only because of the economic loss that would be caused to the victims but especially because of the extreme inconvenience that could be caused to the victims when important documents such as identity cards or staff cards or credit cards have to be replaced and obviously it would involve considerable time and expenses.

18.The Court of Appeal had by the case of Ngo Van Huy laid down clear guidelines and also identified aggravating factors to be considered when approaching the question of sentencing for this type of offence. 

19.As to the starting point, the Court of Appeal had said in Ngo Van Huy that 12 to 15 months’ imprisonment after trial was only appropriate for a first-time offender.  You are by no means a first offender.  In my judgment, the only appropriate starting point should be one of 15 months. 

20.Mr Chang had tried to distinguish the facts of your case by pointing out that the victim in your case is only 57 years old who is younger than the 73-year-old victim in another case Tsui Chiu Kwai. 

21.In my judgment, this is only one of the many factors which is fallen for consideration but the age gap between the victims in Tsui Chiu Kwai and in our case would not cause me to reduce the starting point in any event. Therefore, I would still adopt 15 months in your case.

22.Secondly, on account of your previous appalling records, I agree with your counsel’s submissions that I would adopt 9 months as the level of increase to reflect your situation.

23.Lastly, this offence took place in a crowded market place and at the busy hours of the day so for this reason, the sentence shall be further increased by 3 months. 

24.In total, the starting point, after upward adjustment by taking into account all those two aggravating factors that I have identified, comes to 27 months. 

25.You pleaded guilty which is the only effective mitigation, and for this, you would be given the usual one-third discount.  Therefore, you are sentenced to 18 months’ imprisonment for this offence.

Please refer to CACC265/2013 for the relevant appeal(s) to the Court of Appeal.