HKSAR v. Tsang a Sjoe

DCCC 516/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 516 OF 2014

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Theft". This is a pickpocketing case which took place in a shopping mall in Mongkok.

Summary of Facts

2.PW1 (Madam WANG) is a visitor from the mainland.  On 27 April 2014, she was shopping at "H&M" situated at Ground Floor, Langham Place in Mongkok ("the Shop").  Suddenly, she was told that someone had stolen from her backpack.  She checked and discovered that a yellow bag containing the properties particularized in the charge missing.

3.PW2 (Sgt 50173) was off-duty that day.  He was in the Shop at the material time.  He observed that PW1's backpack was open while the defendant was standing behind PW1 and looking around.  PW2 therefore followed the defendant out of the Shop and saw him holding a yellow bag.  PW2 revealed his police identity and stopped the defendant.  The defendant admitted having stolen the yellow bag.

4.After the defendant was stopped, PW1 identified the yellow bag and its contents being her properties.

5.Uniformed police officers later arrived.  Under caution, the defendant admitted to PW3 (PC 7716) that he had stolen the yellow bag from a woman inside the Shop out of momentary greed.  In his subsequent video recorded interview, the defendant claimed that PW1's backpack was unzipped so he stole the yellow bag.

Mitigation & Sentence

6.The defendant is now 73 and recently divorced. He has no family members or relatives in Hong Kong or the mainland.

7.The defendant's criminal record is appalling. His first criminal record is dated 1955, when he was only 14. From that point onwards, his criminal convictions continued to accumulate until early 2012. He has a total of 22 conviction records, which involve 17 theft-related offences; and of those 17 theft-related offences, at least 9 are specified as "pickpocketing". He was last sentenced to 16 months' imprisonment in February 2012. A quick glance at the defendant's criminal record gives me an impression that the defendant has in fact spent a substantial portion of his life in Hong Kong in prison; so much so that his lawyer Mr. CHAN informed me that owing to the amount of time which the defendant had spent in prison, he is still unable to become a permanent resident of Hong Kong.

8.In mitigation, Mr. CHAN submitted that the defendant has made frank admissions when intercepted by PW2. Furthermore, the defendant acted alone and no tools (for example, razor blades or cutters) were used. Mr. CHAN also submitted that the defendant was under financial pressure. The defendant currently receives about $2,500 per month in welfare; and has only about $2,000 to spend each month after paying utilities. Mr. CHAN informed me that the defendant intends move to the mainland, which would allow him a lower cost of living. Mr. CHAN stressed that the only aggravating factor in this case is the defendant's criminal record.

9.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. In modern Hong Kong, there is sufficient social welfare protection for the poor to meet their basic needs. Having lived in Hong Kong for so many years and being a released prisoner, the defendant must know how to seek help.

10.The nature of this case appears to be pickpocketing simpliciter; however, the defendant being a persistent offender clearly constitutes an aggravating feature. Furthermore, I take judicial notice that any part of Mongkok cannot be regarded as a location of low pedestrian flow around noon on a weekday.

11.I have borne in mind the relevant sentencing authorities[1]. In this case, I adopt a starting point of 27 months' imprisonment. A one-third discount is given for the guilty plea, reducing the sentence to 18 months. Out of mercy, I will grant a further reduction of 1 month to reflect the defendant's old age. The sentence I impose is therefore 17 months' imprisonment.

12.In my view, the court can only do so much in deterring a persistent offender by way of a heavy penalty. Whilst the sentence must carry a deterrent effect, the increase in the sentence cannot go out of proportion. I accept that there are limits in our penal system. If the defendant refuses to reform and to live a law-abiding life, that is his choice, and he will have to face the consequences.