HKSAR v. Mohammed Jaqub Baloch

DCCC 490/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 490 OF 2014

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Reasons for Sentence
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Charges

1.The defendant pleads guilty to 10 charges of theft, ie Charges 1, 2, 4, and 8 to 14.  On each of the 10 occasions between 29 March 2013 and 17 January 2014, he entered a different shop whilst acting as a customer interested in viewing or buying certain goods.  When the salesperson left the counter briefly to cater for his request, he stole the salesperson’s iPad (under Charge 2) or mobile phone (under each of the other 9 charges), as the case may be, which was left unattended on the counter.  He fled before the salesperson was back. 

2.The value of the stolen property ranged from $4,300 to $6,500, in total $54,180 for all 10 charges. Only the mobile phone under Charge 13, valued at $5,500, was recovered upon his arrest near the crime scene shortly after his theft on 27 December 2013; he admitted the theft to the police there and then. 

3.About 3 weeks after he was granted police bail for Charge 13, he committed the theft under Charge 14, on 17 January 2014, for which he was arrested on 11 February 2014. 

4.In subsequent cautioned interviews, he admitted all the offences. 

Personal background and mitigation

5.He was born in the Philippines.  He is the holder of a Hong Kong identity card.  He was educated up to F. 5 level in Hong Kong.  When he was in the Training Centre in 2005, he completed high school level.  He had worked in various unskilled posts before arrest.  He claims that he had committed the present offences to pay for the medical bills of his mother in the public hospital before she died of liver cancer last year. Despite the lapse of a 6-week adjournment granted by me at his lawyer’s request to prepare evidence of the medical bills and what not, there is nothing in support of his claim.  

6.From October 2008 to November 2011, he had been sentenced for 8 charges of theft in 6 cases. 

7.There is a mitigation letter from the CSD chaplain outlining the Defendant’s assistance to the chaplain and the inmates with respect to communication and understanding of detention life. 

Sentencing considerations

8.Mr. Mitchell, counsel for the Defendant, puts up 3 magistracy appeals in Chinese for comparison of sentences.  The first case is HCMA 223/2008.  The police were in an operation observing 2 defendants going into a fashion shop.  One defendant held up a jacket to obstruct the view of shopkeepers when another defendant put 3 items of clothing into a bag and went into the fitting room.  They left without payment.  When the police arrested them on the street, the 3 items of clothing were recovered with a pair of scissors.  The defendant had cut the security tag whilst in the fitting room to deactivate the security alarm.  On appeal, the starting point of 18 months, as well as the actual sentence of 12 months on a guilty plea, was affirmed on the ground that it was a joint enterprise both equipped and with prior planning. 

9.The second case is HCMA 421/2009.  The defendant pretended to try on a watch valued at $65,000 in a pawnshop when he ran off without payment.  The pawnbroker caught him after a distance.  On appeal, the starting point of 30 months was reduced to 18 months, resulting in a sentence of 12 months on a guilty plea. 

10.The third case is HCMA 130/2014.  The defendant pleads guilty to 5 thefts and 1 assault.  He stole 1 mobile phone from a shop.  When he walked past the shop few days later, the shopkeeper recognized him and called a security guard to stop him.  He assaulted the security guard.  The police arrived and retrieved from him 2 mobile phones.  His admission revealed that he had stolen 1 mobile phone from each of the 5 shops within 1 week.  His sentence was 7 months in total.  His appeal against sentence was dismissed.  M. Poon J regarded that the defendant’s sentence was on the lenient side as the magistrate could have adopted the sentencing guidelines for pickpocketing.

11.I understand that the Court of Appeal had laid down a guideline sentence of 12 to 15 months for pickpocketing after trial for a first time offender in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  A heavier sentence would be imposed where there were aggravating factors, which included:

(1) The offence being committed in a place in which the public is at particular risk, such as crowded places like the MTR or the race course, crowded shopping areas where the pedestrian traffic is heavy;

(2) Repeat or persistent offending.

Sentencing this Defendant

12.As M. Poon J had observed in HCMA 130/2014, it would be proper to adopt the sentencing guidelines for pickpocketing for theft of this kind.  I would take 12 months as the starting point for a fresh offender.  Being a recidivist thief, he warrants a starting point of 15 months for each of the 10 charges.  For Charge 14, I take a higher starting point, ie 18 months, as it was committed whilst on police bail for the theft under Charge 13.  He has no mitigating factors except his pleas of guilty which attracts a one-third discount.  His sentence is 12 months for Charge 14 and 10 months for each other charges.  The offences were committed in a period of near 10 months and at diverse locations on Hong Kong Island, Kowloon, and N.T.  I make the following totality adjustment:

(1) Charge 14, 12 months to be served;

(2) For each of the other 9 charges, 2 months consecutive to each of the other sentences.

13.The overall sentence is 30 months.