HKSAR v. Yu Sik Fun and Another

DCCC 757/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 757 OF 2013

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Reasons for Sentence

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1.The defendants in this case were charged with an offence of theft.

2.In respect of the charge, D1 pleaded guilty at the outset to the charge, but disputed many of the facts alleged by the prosecution.  The 2nd defendant pleaded not guilty and I convicted him after trial.

3.The facts which I found proved in this case were that at 3.30 on the afternoon of 13 June, a plainclothes police officer was on duty in the Kowloon MTR.  The officer’s attention was drawn to the two defendants, who were wandering round the MTR station, because they were looking at the luggage of passers‑by.  The officer became suspicious.  Some 20 minutes later, the officer observed the two defendants following a man who was pulling a black travel bag towards an escalator leading to the shopping mall which is on the upper floor of the MTR station.

4.On the escalator, the 1st defendant stood one step behind the victim’s luggage, and the 2nd defendant stood one step behind the 1st defendant.  About five steps from the top of the escalator, the officer saw the 1st defendant make an action as if unzipping the luggage of the victim’s bag and take away a black object, which later turned out to be a mobile phone, and the 1st defendant immediately passed the mobile phone back to the 2nd defendant.

5.The officer moved up the escalator to intercept the defendants and there was a struggle.  During the struggle, the mobile phone fell to the floor of the escalator, and the plainclothes police officer and the 1st defendant both sustained certain minor injuries.  With the assistance of a passer-by and some security guards, the defendants were subsequently detained and handcuffed.

6.The officer was required to go to hospital for treatment, but fortunately his injuries were not serious, but he did require five days’ sick leave.

7.The 1st defendant has appeared before the court on 14 previous occasions.  The vast majority of the offences were for theft or loitering.  He was last before the court in 2008 for theft which was described in the record as “snatching”.  He was sent to prison for 12 months.

8.The 2nd defendant has appeared before the court on seven previous occasions.  Again, the majority of the offences are theft related.  His last court appearance was in 2004 for conspiracy to steal, when he was eventually given a sentence of 42 months’ imprisonment.

9.The 1st defendant is aged 59.  He was born on the mainland and came to Hong Kong in 1972.  He received primary education on the mainland.  He was unemployed at the time of the offence and in receipt of Social Security benefits.  He was married, but divorced in 2008, and his 13-year-old son lives with his ex-wife.  I am told that he committed the offence for financial reasons.

10.The 2nd defendant is also 59, born on the mainland, and came to Hong Kong in 1978.  I am told from his antecedents that he has no fixed address in Hong Kong, but has a residence in Shenzhen.  He received secondary education on the mainland.  He was unemployed at the time of the offence.  I am told he was last discharged from prison in August 2008.  He is married, but lives alone in his flat in Shenzhen.  His wife, son and daughter live in Hong Kong.

11.Common mitigating features urged upon the court are that there was no implement used in the commission of this offence, the theft involved the stealing of a mobile phone, no identity document stolen and in the case of the 1st defendant, he pleaded guilty to the offence, although he did dispute certain facts.

12.The usual sentence given for an offence of this kind is 30 months’ imprisonment.  This reflects the fact that not only is it a theft, but it is a theft in a crowded place by two men acting in concert, with poor records. 

13.In this case, I have no doubt whatsoever that the two defendants were at the MTR station deliberately looking for opportunities to steal property.  I also took into account this is not merely an MTR station.  This is also the station for the Airport Express, so you would expect people from the airport to be passing through the station.  In this case, the victim was from Taiwan, and he was unaware of the theft that had occurred.

14.With regard to the 1st defendant, although he pleaded guilty, he did dispute a number of facts alleged by the prosecution.  He tried to make out that he was at the MTR station for a legitimate reason and that this was simply an opportunistic theft.  I did not believe that.  I was quite sure that he and D2 were there deliberately looking out for opportunities to steal.

15.Thefts of items, especially from visitors to Hong Kong, cause enormous problems for the visitors, and deterrent sentences have to be passed.  I also take into account that the officer obviously has to take some risks in making arrests in these circumstances.  The escalator is the obvious place for the theft actually to take place, because, as in this case, the victim stands on the escalator usually with this bag behind him, so he is unaware of what is taking place.  Where there are two thieves involved, the officer has got to try and get hold of them before they leave the escalator and separate.  The officers do put themselves at risk.  PW1 was injured.

16.Having looked at all the circumstances of this case, I see no reason to depart from the 30-month sentence as a starting point.

17.I have considered the situation as regards the 1st defendant.  As I mentioned, he pleaded guilty to the offence but disputed the facts, and he also, in my view, distorted what really happened. Normally, a discount is given for a guilty plea because it indicates remorse and also it saves court time.  The defendant’s guilty plea had none of those qualities.  I do accept that he is entitled to some discount.  I will reduce his sentence by 3 months.

18.D1 will go to prison for 27 months, and D2 will go to prison for 30 months.