HKSAR v. Xia Guofeng

DCCC 172/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 172 OF 2014

____________

____________

____________________________

REASONS FOR SENTENCE

____________________________

1.Xia Guofeng you have pleaded guilty to three charges of theft, contrary to section 9 of the Theft Ordinance, Chapter 210.

2.You arrived in Hong Kong on the 23 December last year.  The following day you committed three offences of theft, commonly called pickpocketing.

3.Briefly at around 20:33 hours on the 24 December police officers were patrolling at the junction of Nelson Street and Nathan Road when they saw you acting suspiciously by looking at the handbags of pedestrians.  The police officers intercepted you and found inside your bag two wallets and one mobile phone. 

4.Earlier in the evening you took the mobile phone out of the jacket pocket of the owner whilst she was travelling on the MTR and took the two wallets from the bags of different owners whilst they were shopping in Mongkok.  Under caution you admitted stealing the mobile phone and the two wallets because of poverty.

5.In passing sentence I have carefully considered everything said on your behalf by Mr Fung, in particular that both you and your wife are deaf and dumb and that you have a son aged 8.  I take into account that whilst you have been in custody your father passed away.  I also take into account you have no previous convictions. 

6.In HKSAR v Ngo Van Huy[2005] 2 HKLRD 1 as applied in HKSAR v Duong Van Dung & others CACC 284/2004 the Court of Appeal confirmed the guideline sentence for pickpocketing after trial is 12 to 15 months imprisonment for a first offender, where there are no aggravating features.  Aggravating features include where the offence is committed in a place in which the public is at particular risk, such as crowded places like the MTR and areas where the pedestrian traffic is heavy.  Two of the offences were committed in Mongkok, which is well known to be crowded particularly in the early evening and even more so considering the day of the offences was Xmas eve.

7.Although you have a clear record I am nevertheless satisfied that the commission of the offences by you just over 24 hours after arriving in Hong Kong as a visitor is also an aggravating feature of sentence (see for example HKSAR v Tan Hong Sheng CACC 238/2005 and HKSAR v Aguilar Garcia Milner Javier CACC 485/2012).

8.I am satisfied the initial starting point after trial for theft of the wallets is 12 months imprisonment on each of charges 1 & 2 and for the theft of the smartphone 15 months imprisonment (see for example HKSAR v Chiu Suet Yee, Angel CACC 105/2010 and HKSAR v Liu Lin Feng CACC 206/2011). 

9.By reason of the aggravating features that the thefts were committed in crowded places where the public are at risk and that the offences were committed the day after you arrived in Hong Kong, I am satisfied the starting point for each offence is to be increased by 9 months imprisonment resulting in starting points of 21 months imprisonment for each of charges 1 & 2 and 24 months imprisonment for charge 3. 

10.Giving you full credit for your pleas of guilty reduces the  sentences on each of charges 1 & 2 to 1 year and 2 months imprisonment and on charge 3 to 1 year and 4 months imprisonment.

Totality

11.The three offences are separate and distinct, involving three different victims for which consecutive sentences are appropriate.  Taking into account that the offences were committed within two hours of each other I am satisfied a total sentence of 3 years and 8 months imprisonment would be excessive and that a total sentence of 2 years and 6 months imprisonment properly reflects your criminality on the three charges.

Sentence

12.You are convicted and sentenced as follows:

Charge 1 – 1 year and 2 months imprisonment;

Charge 2 – 1 year and 2 months imprisonment with 8 months consecutive and 6 months concurrent to charge 1; and

Charge 3 – 1 year and 4 months imprisonment with 8 months consecutive and 8 months concurrent to charges 1 & 2.