HKSAR v. CHAN MEI YEE CARMAN AND ANOTHER

 DCCC 830/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 830 OF 2008

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Reasons for Sentence

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1.  Both defendants were charged jointly with one count of theft; D2 pleaded guilty while D1 denied the charge.  D1 was convicted after trial.

2.  It was a pickpocketing case.  On the day in question it was raining.  The two defendants were following their victim who carried a backpack on her back walking down a busy street in Mong Kok.  When they came close enough behind the victim, D2 moved sideways a little bit, putting up the umbrella.  Dl had a flyer in her left hand to cover the backpack of the victim.  Her right hand was to unzip the backpack of the victim.  By two attempts she was able to open up the zipper by 8 inches wide.  She inserted her hand into the backpack and at this juncture the police took action.  The sergeant grabbed hold of D1’s hand and had both defendants arrested.

3.  The 1st defendant has amassed 13 convictions over the past 16 years, 12 of them are theft. 

4.  In mitigation, counsel for D1 said D1 is single, living with her mother and an elder brother.  In September 2009 she suffered from anorexia and also had stomach ulcer.  In a couple of weeks her condition was critical, her life was at risk.  But her condition now is under control.  She has recovered from anorexia.  She is a drug addict.  She has been to DATC three times.  She has been abusing drugs over 10 years.  Counsel pointed out that two days after the day of offence, she had an operation to remove the needle in her body.  She now recovered from that. 

5.  Counsel submitted that this was neither an organised nor a professional pickpocketing.  The act of pickpocketing was performed in amateurish, not a professional way and no money lost. 

6.  In D2’s case, she has two previous back in 2003.  Counsel for D2 pointed out that the event leading up to the present offence- in February 2009 D2 was told by doctor she became pregnant.  Her boyfriend became aware of this fact, decided to dissert her.  D2 did not seek help from her family but tried to deal with the matter on her own.  She was unemployed at the time, being lonely and desperate, not knowing how to deal with it.  At the time when D2 was feeling helplessness, D1 came into the picture.  On the influence of D1 and also that the 2nd defendant wanted to get quick money, it was under these circumstances she became involved in the present offence. 

7.  D2 has given birth to a baby boy, now he is in the care of D2’s family members.  Counsel said the 2nd defendant is now a more mature person than she was at the time of the offence and she is now a mother and realizes she has certain responsibility to her child and the society. 

8.  Looking at her record, the 2nd defendant was able to stay out of trouble for six years previously.  Counsel said she had confidence that the defendant could stay away from trouble for the rest of her life after this offence.  Counsel stressed that her record was not appalling and this was only a straightforward pickpocketing, no instrument used, no international element involved. 

9.  Pickpocketing is a serious offence.  Counsel for the 2nd defendant has drawn the court’s attention to a case Tan Hong Sheng CACC238/2005.  Here I would like to echo the sentiment expressed by the Court of Appeal in paragraph 19 of the judgment.  It was said:

‘We wish to repeat what we said in Ngo Van Huy “theft by pickpocket can be regarded as the type of offence that society severely and rightly condemns.  Although in many cases, the value of the items stolen may not amount to much, the significant degree of inconvenience, the relative ease with which it can be effected by a direct invasion of or about the person and privacy of those minding their business in public places, and the adverse reputation that this type of crime collectively brings upon a city makes this offence a particularly serious one.  It is one which attracts, justifiably in our view, a heavy penalty.”’

10.  Here in our case the crime was committed by two persons and, in my view, it was executed in a professional way.  D1 executed the stealing in a swift, skilful and professional way.  She was able to do that without alerting the victim nor other passers-by in a busy street with many people around.  And D2 was there to cover D1’s act.  They could have got away with it had it not been for the vigilance of the police who spotted the defendants and put them under observation. 

11.  In the same judgment of Tan Hong Sheng, the Court of Appeal had this to say:

“We take this opportunity to indicate that in our view, because of their seriousness, organised crimes of this nature including group pickpocketing, even without international ramifications, might in future properly attract a starting point of at least 2½ years’ imprisonment.”

12.  The Court of Appeal went on to say in the next paragraph, having considered a number of previous authorities, said:

“This court approved a starting point of 2½ years’ imprisonment for pickpocket offence committed by two or more defendants.”

13.  From the facts found by the court in the present case and for the reasons stated above and taking into account the mitigation put forward on behalf of the defendants, I take a starting point of 2½ years. 

14.  In the case of D1, looking at her record, undoubtedly she had led her life in a thievious way for the past 16 years.  The sentence she had received previously had not deterred her a little.  The Court of Appeal said on many occasions for a repeat offender, the court is entitled to take a higher starting point than usual.  Because of her appalling record, I add 9 months on top of that, making the starting point one of 39 months.  She was convicted after trial, there being no mitigation for any reduction of the sentence.  She is sentenced to a term of 39 months. 

15.  In the case of D2, she pleaded guilty.  30 months are reduced to 20 months to reflect her plea, and I see nothing further to reduce her sentence.  D2 is sentenced to 20 months’ imprisonment.