HKSAR v. Tsui Chiu Kwai
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DCCC 436/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 436 OF 2014 ----------------------
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--------------------- Reasons for Sentence --------------------- 1.Defendant, you have pleaded guilty to one charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210. This is a pickpocketing offence. 2.On 12 April this year, certain vigilant police officers were patrolling and spotted you. They then proceeded to follow you from behind. It was about 5 o’clock in the afternoon. They watched you enter a wet market in Mongkok, and the facts are that at that time the fresh food market was very crowded. Their suspicions were absolutely correct. They watched you looking at handbags or bags carried by shoppers. They watched you insert your hand into a victim’s handbag and take out a coin bag. They intercepted you immediately. You were caught red-handed. You made an admission at the scene under caution. 3.In this case, the coin bag contained $40.50 and RMB16‑odd. Although the coin bag did not contain much money, this is not a factor I consider very relevant where pickpocketing is concerned. Pickpockets do not know what a wallet or a purse contains when they steal them out of handbags or pockets. The gravamen of this offence is the huge inconvenience pickpockets put victims through. 4.You are 51 years old, divorced. I have been told you are a casual decoration worker. It seems you have a drug addiction problem. I can see that from the antecedent as well as previous records for possession of dangerous drugs. I can also see from your record that you are a professional pickpocket. You have 32 appearances in all levels of court, resulting in 34 convictions. 23 of those are theft offences, and they either state they are pickpocketing offences or I can tell from the sentence that they are pickpocketing offences. In short, your previous criminal record is appalling. 5.Your best mitigation today is your plea of guilty. I have heard all that can be said on your behalf in mitigation. I have been told that you saw a handbag open and took the opportunity to steal, but the facts suggest otherwise. It suggests that you deliberately went to a wet market where there were many people, looking for a victim. 6.Defence counsel has taken me to an often-quoted authority, HKSAR v Ngo Van Huy CACC 107 of 2004. That authority offers guidelines for sentencing. The Court of Appeal is of the view that a guideline sentence of 12 to 15 months after trial is appropriate for a first-time offender. It goes on to set out what factors could be considered aggravating which would increase that starting point. 7.In this case, those relevant aggravating factors would be, firstly, the choice of a crowded wet market in Mongkok at 5 o’clock in the afternoon. Clearly, you have preyed on vulnerable unaware victims who are shopping for food at the material time. A wet market such as this in Mongkok at that time is a place where the public is at particular risk. That would call for an increase in the starting point. 8.The second relevant factor is your previous convictions for the same offence. You are a persistent offender, a recidivist and, clearly, a professional pickpocket. In fact, you were described as Judge Casewell in DCCC 965 of 2011 as a professional pickpocket. He sentenced you to 20 months after plea for a single pickpocketing offence. He took a 15 months’ starting point, added 12 months for the aggravating feature of your poor criminal record and 3 months for choosing to prey on victims in a crowded market. 9.In the appeal of that sentence, the CACC 452 of 2011, the Court of Appeal upheld that sentence. It took no issue with the calculation of the starting point Judge Casewell adopted. In that appeal, the Court of Appeal reiterated the stance taken in Ngo Van Huy, specifically how a substantial increase on the starting point of 15 months must be imposed on account of the appellant’s appalling previous record for theft. 10.Looking at your criminal record, your first conviction for pickpocketing was when you were 18 years old in 1981. After 1981, you had a string of convictions. From 2002 to 2011, you had at least one conviction for pickpocketing every year. And I note in 2008, you were sentenced to 18 months by the District Court for pickpocketing. In 2010, you were sentenced by the District Court to 18 months’ imprisonment for pickpocketing. 2011, you were sentenced to 20 months, as I have just set out, by Judge Casewell for a single charge of pickpocketing. Your most recent conviction in 2012 December, you were again sentenced to 20 months by the District Court for pickpocketing. With each conviction, your sentences have become longer and longer. In your last two convictions, the District Court took 30 months as the starting point. 11.Today, Mr Leung urges me to consider a 27-month starting point where the facts are almost identical to your previous convictions. So, with respect, I cannot agree with that submission. The court’s deterrent approach is clearly not deterring you. Your sentences have not prevented you from re‑offending. It is a sad state of affairs. 12.Defendant, please stand up. Like my learned brothers in your last two previous convictions in the District Court, I too will take the initial starting point of 15 months for this offence. I will add to that starting point 12 months for your recidivism and persistent offending. A substantial increase is required to reflect your appalling actions. I note you continuously choose crowded places such as markets to prey for victims. This is an aggravating factor, and I intend to add 6 months to that starting point because you clearly prey in locations where the public are at risk. 13.Starting point is therefore one of 33 months. You are entitled to a discount of one-third for your plea. After that discount, you are for this offence sentenced to 22 months’ imprisonment. Understand that sentence? DEFENDANT: Understood.
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