HKSAR v. Tam Wan Yan

DCCC 676/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 676 OF 2013

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.The particulars of the offence are that on 11 June 2013 in H&M, a store, the defendant stole a smartphone from a Miss Fung.

3.The facts show a classic pickpocket scenario. The victim who was shopping at that time felt somebody tamper with her handbag and felt that person very close to her.  She immediately checked her bag and found her iPhone which had a red phone cover was missing.  As she realized this and looked around, the defendant pointed to a woman some distance away and told the victim it was her.  The defendant basically accused another woman hoping to make a getaway.

4.The victim soon quickly realized that there was something wrong with this, suspected the defendant and turned her attention to the defendant.  She quickly approached the defendant who was still in the shop and found the defendant holding her phone in her hand.  The defendant told the victim that she had picked it up from the floor.  The victim identified it as her property. 

5.Whilst this was going on, there was a police officer who was in the shop looking for the defendant.  He had seen her from a vantage point outside the shop some minutes earlier.  He thought she looked suspiciously and put her under observation but he lost sight of her.  When he lost sight of her, he went into the shop to look for her.  When he found her, she was exchanging words with the victim.  The defendant was promptly arrested.

6.The defendant made an admission under caution to this officer.  She co-operated with the police. 

7.I have been told that the defendant has many previous convictions, many that relate to offences of dishonesty of which at least 7 were pickpocketing offences.  The defendant’s last 3 convictions were pickpocketing offences and dealt with in the District Court. 

8.The defendant’s best mitigation today is her plea of guilty.  I have had a letter from the Hong Kong Christian Kun Sun Association Limited.  It, in short, asks for leniency for the defendant and to show her mercy in view of her family and financial situation.

9.The defendant is now 46 years old.  Today I have been told she is a divorced mother of two children, aged 11 and 8.  I have been told that the 11-year-old is in the custody of her ex-husband and living with him in Vietnam.  Her 8-year-old lives in Hong Kong with her.  This child is now in the care of a friend.  Both the defendant and this daughter are receiving CSSA assistance.

10.I note that her family detail or situation as told to the last District Court judge in mitigation is very different from what I have heard today.  The only similarity is an 8-year-old child who is presently living with her.  Despite anomalies, it makes no difference, in my view, to the sentence I would impose and I do not intend to ask for any further clarification.

11.I have considered the relevant authority and have actually been referred to it by defence counsel, that is HKSAR v Ngo Van Huy CACC107/2004.  In that authority the Court of Appeal makes it very clear that theft by pickpocketing is a serious offence and will attract a heavy penalty, an immediate custodial sentence.  A first-time offender would face a 12 to 15-month term of imprisonment after trial, and that starting point would be increased according to the Court of Appeal if aggravating factors exist. 

12.I will not repeat the aggravating factors considered in that authority but there are two relevant ones that apply to this defendant.  The first being the defendant chose a crowded public place to commit this offence where the public is at particular risk.  And this particular shop in Central, H&M, at lunchtime is inevitably full everyday. The second relevant aggravating factor is the defendant’s appalling record. She is a repeat offender and a persistent offender.  She can be described as a recidivist. 

13.Defendant, please stand up.  Before taking the aggravating factors into account and after taking into account all that has been said on your behalf, that includes the letter of mitigation put forward and the background that I accept, in particular she has a young child to care for, I do take a starting point of 19 months’ imprisonment. 

14.I would add, for the first aggravating factor, that being the defendant’s choice of venue to commit this offence, a 4-month enhancement.  I add a further 4 months for her previous appalling criminal record.  That is a starting point of 27 months.  The defendant has pleaded guilty and is therefore entitled to a discount of one-third.  Defendant, that is a discount of 9 months.  The defendant is therefore sentenced to 18 months’ imprisonment for this offence.