HKSAR v. Ha Kin Man
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DCCC 471/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 471 OF 2014 -----------------------------------
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---------------------------- Reasons for Sentence ---------------------------- 1.The defendant pleaded guilty to one charge of theft, contrary to s.9 of the Theft Ordinance, Cap.210. Particulars of the charge are that the defendant on 23 April 2014 stole from one Yung Yuet Ying Edwina 1 wallet, 1 Hong Kong identity card, 6 bank cards and cash of $371 at the junction of Ki Lung Street and Kweilin Street, Sham Shui Po, Kowloon. Facts 2.Plainclothes policeman on anti-crime patrol at around 6:10 pm on 23 April spotted the defendant acting furtively outside a vegetable stall at the crowded junction of Ki Lung and Kweilin Street, hanging around and staring at the bags of the customers. 3.About 4 minutes later, while the victim was walking along Ki Lung Street towards Kweilin Street, the defendant followed her closely and then reached his right hand into the bag that the victim was carrying and took out a wallet. The defendant held the wallet in his right hand and walked quickly along in the same direction. 4.The plainclothes Police officers immediately went up to intercept the defendant and seized the wallet. Contents of the wallet included cash of $371, 1 Hong Kong identity card, 1 ATM card and 5 credit cards. They were shown to the victim who confirmed they were her property. 5.The defendant remained silent after the Police declared his arrest and cautioned him for theft. Previous convictions 6.The defendant has 20 previous convictions, with 16 being for theft. 7 of those 16 were for pickpocketing. His last conviction was on 6 September 2013 when he was sentenced to 16 months’ imprisonment in the District Court after pleading guilty to one charge of theft. Mitigation 7.The defendant is 54 years old, divorced and with no fixed abode. He was born in China and came to Hong Kong in 1979. He was educated up to primary school level. 8.The defendant’s father passed away in 1988 in mainland China. The defendant’s siblings are all living in Guangzhou. The defendant would visit them once a year but they do not maintain a close relationship. The defendant has no relatives in Hong Kong. 9.The defendant had worked as a construction worker and hairstylist. He unfortunately became a drug addict and has a long history of heroin abuse. When it got to a point where his income was not enough to support his drug addiction, he turned to crime. 10.The defendant receives a monthly amount of $3,700 social assistance but since it is barely enough for food, the defendant chose to live on the street. 11.The defendant also has a history of mental illness. As early as 1983, he had been sentenced to Siu Lam Psychiatric Centre for treatment. In fact, after the defendant’s arrest for the present offence, he was sent on 24 April to Siu Lam for treatment, returning on 15 May. The defendant is currently under prescribed medication and his condition is under control. He does however require continued regular treatment. 12.As a result of his age, conviction record and mental illness, it had been almost impossible for the defendant to find a job after his release from prison. The best he could do is construction site work or casual work. Without a stable income, the defendant had no choice but to turn to stealing. 13.The defendant is fully aware of the seriousness of the offence. Ms. Chu rightly pointed out that there are 2 aggravating factors in the present case. The offence was committed in a crowded area at busy hours, and the defendant is a repeat offender for the same kind of offence. The defendant knows he will be facing a higher starting point. 14.Nevertheless, Ms. Chu reminded the court that the defendant has pleaded guilty, the stealing was simple and straightforward, there is no evidence of organized crime or collusion with others and no use of weapon. Customary Sentence 15.It is not disputed that what the defendant did was ‘pickpocketing’. According to the editors of Sentencing in Hong Kong (6th edition), the customary sentence for theft by pickpocketing is that of 12 to 25 months’ imprisonment after trial for a first offender[1]. One of the aggravating factors identified by the learned editors is the commission of the offence in a place where the public are at particular risk, which is present in our case. Sentence 16.Having heard from Ms. Chu the defendant’s mitigation, while the defendant has the court’s sympathy for the difficulties he faces in trying to earn a living, the defendant still has to face the consequences of his actions. Despite the personal circumstances of the defendant, I find that there are no specific mitigating factors disclosed in mitigation. 17.I do however agree with Ms. Chu that there are two aggravating factors in that the theft was committed on a crowded public street and the defendant’s criminal conviction record. 18.Balancing the circumstances of the case and taking into consideration the aggravating factors, I find that an appropriate starting point is that of 24 months’ imprisonment. I will grant the defendant the full one third discount for his guilty plea and sentence him to 16 months’ imprisonment.
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