HKSAR v. Wei Zhibo and Another

DCCC 96/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 96 OF 2015

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REASONS FOR SENTENCE

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1.The two defendants were jointly charged with one count of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.This morning they both pleaded guilty and were convicted accordingly.

3.The theft they committed took the form of pickpocketing.  A 22-year-old female victim at the time of the offence had her iPhone stolen from the right pocket of her coat at around 11 pm outside a shop in Tsim Sha Tsui area on 24 December 2014 when it was Christmas Eve and the street was so crowded with people celebrating the festival.

Facts

4.As stated, at the time of the offence, the street was crowded.  A group of police officers were conducting crowd management duties in the Tsim Sha Tsui area and one of the police officers discovered that D1 and D2 were walking together, chatting with each other and peeping at the belongings of passers-by.  The activities of both defendants had alerted this officer, who in turn alerted her colleagues and they placed observation closely to the activities of both defendants.

5.Later, when they all reached outside a shop which is in Star House, No 3 Salisbury Road, Tsim Sha Tsui, they found that D1 and D2 walking briskly towards the female victim, approaching her from behind.  D1 was observed to walk behind the victim when D2 was on the right side of D1.  D2 then peeped into the right pocket of the victim’s coat and then nodded at D1.  Then D1 looked at the right side of the victim’s coat. 

6.About 11:04 pm, D2 walked closer to the victim from her right.  As D2 looked at the victim’s back, D1 used his right hand to take a mobile phone from the right pocket of the victim’s coat.  D1 then turned around immediately and walked away while D2 kept walking next to the victim.

7.D1 was then immediately stopped and apprehended by a police officer and the mobile phone, which was later identified by the female victim as hers, was recovered from him.

8.Another police officer also stopped and arrested D2.

9.Under caution, D1 stated that he had stolen the mobile phone by himself, while D2 remained silent.

10.According to the Immigration record, D1 came to Hong Kong on 23 December 2014 at 5:45 pm while D2 came on 24 December 2014 at 3:03 pm.  Both of them were allowed to stay for a period up to seven days.

The criminal record and the background of the defendants

11.Each defendant has a clear record in Hong Kong.

12.D1 was aged 29 and he came to Hong Kong on the strength of a two-way permit.  He was married.  He has a wife and a son in China.  He only had an education up to the primary level and he was a factory worker in the Mainland.

13.As for D2, he had an education up to Form 2 secondary level in China. He was a barber by occupation.  He was also a married man, with a wife and a daughter.

Mitigation

14.Each of the defendant is represented by a solicitor assigned by the Department of Legal Aid.

15.On behalf of D1, Miss Ada Chan submitted that this is not an organised and premeditated offence.  She said that D1 came to Hong Kong together with his wife for the purpose of sightseeing and it was only in Hong Kong when he bumped into D2, whom he knew back in the Mainland.  Due to financial difficulty and also momentary greed, they committed the offence in Hong Kong.  D1 was very regretful. 

16.Miss Chan also submitted a handwritten letter by D1 stating that he now realised that what he had done was seriously wrong; that he was very much concerned with the welfare of the wife and the 6-year-old son; that he was the breadwinner of the family and he asked the court to pass a lenient sentence so that he can get back to his family.

17.Miss Chan recognised that the basic starting point for a pickpocket offence is in the range of 12 to 15 months.  She accepted that, in this case, there are further aggravating factors, namely, that this offence was committed by more than one person, that two defendants were acting in concert, and also this offence was committed in a crowded place and busy area.

18.Miss Chan, however, submitted that both defendants did not come to Hong Kong with the sole purpose of committing crime here and so she urged the court not treat this as a further aggravating factor.

19.Mr Ben Wong, appearing for D2, has also submitted to court letters written by D2 and his wife.  I am not going to go into the details of these letters, suffice it to say that D2 had expressed extreme remorse in his letter. 

20.The wife had also disclosed that the family circumstances of D2 and that D2’s father has been suffering with diabetes and had incurred huge medical expenses. What is more, the younger sister of D2 also had suffered mental illness and therefore D2 had to shoulder the burden of the family expenses and therefore the wife of D2 asked the court to be as lenient as possible so that the husband can get back and reunite with the family as soon as possible.

21.Similarly, Mr Wong also adopted what Miss Chan had said in mitigation and stressed that D2 did not come to Hong Kong together with D1 with the sole purpose of committing pickpocket here.  It was only due to their dire financial difficulties that when they bumped into each other they discussed the matter and somehow both of them had made the wrong decision to take this opportunity to earn some quick money in Hong Kong. 

22.He therefore urged the court not to place so much weight on this factor when it comes to sentence.

Sentencing consideration

23.In sentencing, I have referred myself to the antecedents and criminal record of both defendants, the facts of the case, the mitigation put forward by both solicitors, as well as the case authorities of the Court of Appeal.

24.In particular, I have referred myself to a Court of Appeal case HKSAR v Xiao Ping [2013] 2 HKLRD 378, a judgment in relation to a pickpocket case committed jointly by three Mainlanders when they travelled to Hong Kong.

25.The Court of Appeal said at paragraph 18:-

“Sentencing guidelines for pickpocketing cases were laid down by the Court of Appeal in Ngo Van Huy. Putting it briefly, the Court of Appeal held that the basic starting point for a first time offender was 12 to 15 months’ immediate imprisonment, and that if there were any aggravating features, a higher sentence could be imposed according to the circumstances. Aggravating features include the use of a weapon or a sharp object by the offender during the commission of the offence; the offence was committed in a crowded place (e.g. the MTR, the racecourse or a crowded shopping area); the offender acted in concert with other members of his gang; the case involved an organized ring of pickpockets — in particular a ring of pickpockets coming to Hong Kong from overseas to commit crimes; and so on.”

26.The Court of Appeal had also referred to another case, HKSAR v Chan Mei Yee, Carman CACC 447/2009 and confirmed that not all the pickpocketing cases involving more than one offender would warrant a starting point as high as 2½ years.  In that case, the sentencing judge had identified two aggravating factors, namely, that the offences were committed in a crowded shopping area and also the offence was committed by more than one person.  In the end, the sentencing judge had increased the sentence by 13 months, after fixing the basic starting point at 15 months (15 + 13 = 28). 

27.In the end, the Court of Appeal held that, in all the circumstances of the case, the sentence was too severe.  The Court of Appeal came to the conclusion that after considering the two aggravating features identified by the trial judge, the starting point should only be one of 21 months.

28.The facts of Chan Mei Yee, Carman (supra)was very similar to the facts of the case that I am dealing with now.

29.Both defendants have clear record in Hong Kong.  The offence no doubt was committed at a time during the Christmas Eve in Tsim Sha Tsui when the area was so full of people coming to the streets to celebrate the festival.  The police officers on duty in question were actually tasked with the duty of crowd control.  No doubt these two defendants were making use of this opportunity that the people were celebrating the event and it was so crowded with people so as to commit pickpocket.

30.Also, this offence was committed by more than one person.  From the facts of the case, which I have described, it clearly showed that the two defendants were acting in concert, that one defendant was covering the other, so that the other had the opportunity to place his hand into the coat pocket of the female victim and to steal the iPhone successfully.

31.However, I agree with the submission by both defence solicitors that the acts of defendants cannot be treated as a professional gang of thieves which this court has seen in other pickpocket cases before.

32.The level of professionalism displayed in this case is after all not high and, what is more, both defendants did not come to Hong Kong together. They came to Hong Kong one after another on two separate days and therefore I cannot rule out the possibility that they did not come to Hong Kong and plan to commit the offence well beforehand and they just, as suggested by the defence, bumped into each other and decided to commit the offence on the spur of the moment.

33.In sentencing, I also referred to another Court of Appeal case, HKSAR v Wong Kan Sun [2014] 1 HKLRD 622, a case which I was the sentencing judge.  In that case I had fixed the basic starting point of a lone pickpocket at 15 months when the mode of the theft was described as “unsophisticated and opportunistic”.

34.The Court of Appeal was of the opinion that, given the description of the circumstances of the theft, one should not adopt a starting point at the top of the 12 to 15 months’ range. 

35.I have to make it clear that the mode of theft in the present case is however far more sophisticated.  In Wong Kan Sun (supra), the appellant could not have known what was in the outer pocket of a backpack that the victim was carrying and the value of the item stolen was only a cardholder with two staff cards. 

36.In the present case before the offence was committed, it was already known that there was an iPhone in the outer pocket of the coat of the victim.

37.Therefore, I still think that I should fix a basic starting point of 15 months.

38.Given the two aggravating factors which have been identified and agreed by the defence, namely, that the offence was committed in a crowded place and also it was committed by more than one person, and following also the decision in Xiao Ping (supra), I decided that, for each aggravating factor, I should increase the sentence by 3 months.

39.The total sentence before reduction would therefore be 21 months (15 + 3 + 3 = 21).

40.Although I have sympathy for the welfare of the family members of the two defendants, family circumstances cannot play any part in mitigation.  There is no exceptional humanitarian ground which can allow me to further reduce any sentence.  Each of the defendants should think twice before they committed the offence in Hong Kong, if they really care for their family.

41.The only effective mitigating factor is therefore their pleas of guilty, for which they would be given the full one-third discount.

42.In the end, for this offence, D1 and D2 will be each serving a 14 months’ imprisonment.