HKSAR v. KHAN ABID AND ANOTHER

DCCC 184/2023
[2023] HKDC 1802
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 184 OF 2023
________________________
HKSAR
v
KHAN ABID (D1)
JOSEPH NABEEL (D2)
________________________
Before:
His Honour Judge Tam
Date:
14 December 2023
Present:
Ms Remedios Lisa D’Almada, counsel-on-fiat, for HKSAR
Mr Corlett Marc Andrew, Counsel instructed by Boase, Cohen & Collins, assigned by the Director of Legal Aid, for the 1
st
defendant
Ms Sujanani Bina Dayaram, Counsel instructed by Lee & Chow, assigned by the Director of Legal Aid, for the 2
nd
defendant
Offence:
盜竊罪（Theft）
________________________
REASONS FOR SENTENCE
________________________
1.
D1 and D2 pleaded guilty before me to a joint charge of Theft, contrary to section 9 of the Theft Ordinance, Cap 210. Particulars are that they, on 25 September 2022, outside Ground Floor, Lyton Building, Nos 32-48 Mody Road, Tsim Sha Tsui, Kowloon, in Hong Kong, stole one iPhone with phone case, one wallet containing 12 cards, one Hong Kong Identity Card, one Octopus card and cash of $154.90 Hong Kong currency, property belonging to Tsui Cheuk-pang.
Facts admitted by D1 & D2
2.
On 25 September 2022, at about 2:52 am, outside Lyton Building, TST, PW1 Tsui intended to hail a taxi but fell asleep under the influence of alcohol.
3.
That time, PW1 had with him his brown wallet (“Wallet”)  and his iPhone with phone case placed inside the right pocket of his shorts.  The Wallet contained 12 cards of various descriptions, his HKID card, one Octopus card and cash of $154.90.
4.
At about 3:25 am the same day, while PW1 was still sleeping on the floor in the same location, D1 & D2 kept pacing back and forth around him and kept looking around.  Soon, D1 & D2 bent down and started to search through PW1’s pockets for valuables.  This action of D1 & D2 woke PW1.  Upon seeing D1 holding an iPhone and D2 holding a wallet, PW1 checked his pocket and realized that they were his property.  PW1 stood up.  D1 and D2 fled.  PW1 gave chase and shouted at the same time.  PC24096 (“PW4”)  and PC20400 who had been keeping observation joined in the chase.
5.
A short while later, D1 and D2 reached the junction of Chatham Road South with Mody Road.  There, two other police constables (including PC28300 (“PW3”))  who responded to the call for help tried to intercept D1 and D2.  D2 parted from D1 and ran towards the direction of Lyton Building.  D2 was being pursued by PW4 and PC20400.
6.
Meanwhile, PW1 and PW3 tried to subdue D1.  During the scuffle, D1 dropped the iPhone from his hand.  A pair of scissors, which had been used to cut open the right pocket of PW1’s shorts, fell out from D1’s pocket.  The iPhone and the scissors were seized by the police.
7.
PW4 and PC20400 managed to intercept D2 at the junction of Blenheim Avenue with Minden Avenue.  Nothing meaningful was found on D2.
8.
Both D1 and D2 were arrested.
9.
At almost 4 am the same day, a passerby picked up the Wallet from the floor outside Lyton Building and later passed the same to PW3.  The Wallet with contents were seized by the police.
10.
D1 and D2 now admit that at the material time, they stole the items of property listed in the Particulars of Offence all of which belonged to PW1.
Criminal records
11.
D1 has 5 previous convictions 4 of which were related to dishonesty offences under the Theft Ordinance.  The last conviction was a Theft recorded in August 2019.
12.
D2 has 4 previous convictions none similar.  However, the last conviction relating to possession of dangerous drug recorded in April 2022 called for a suspended sentence of 8 months’ imprisonment suspended for 3 years.
Antecedents
13.
D1 is aged 36 (35 at the time of the offence); he graduated from secondary school in Pakistan.  He is a Form 8 Recognizance holder and was unemployed at the time of arrest.
14.
D2 is aged 42 (41 at the time of the offence); he graduated from secondary school in Pakistan.  He is a Form 8 Recognizance holder and was unemployed at the time of arrest.
Mitigation
D1
15.
Mr Marc Corlett of counsel assigned by the Director of Legal Aid mitigated on behalf of D1.  The following is a summary of the mitigation submissions.
16.
D1 was born in Pakistan and came to Hong Kong in 2009.  He is a Form 8 recognizance holder.  At the time of offending, he was living on the streets in Tsim Sha Tsui.  He has been supported by charitable organizations and residents in Tsim Sha Tsui area since 2009.  He has a health condition, namely diabetes, for which he has received treatment for some 3-4 years.
17.
D1 had no money and was hungry.  At the time of offending, his blood sugar was low as a result of his diabetes and he was desperate for money to buy food.  This is merely provided as background for motive.  D2 is known to D1 as someone whom he met on the streets, but does not know well.
18.
The offending was opportunistic and driven by impecuniosity and hunger rather than anything more sinister.
19.
In
Ngo Van Huy
, CACC 107/2004, the Court of Appeal held that the starting point for sentence of a theft by pickpocketing is 12-15 months’ imprisonment.  The Court of Appeal listed the aggravating factors which a sentencing court would consider at para 9:
“Aggravating features include:- (a)  the presence or use of a weapon (such as a razor-blade or knife used to cut open, say a handbag, or, worse still, intended to be used on the victim; (b)  where the offence is committed in a place in which the public is at particular risk, such as crowded places… (c)  the accused commits the offence in conjunction with another…; (d)  where the accused is a repeat offender.”
20.
In
HKSAR v Ho Ching
, HCMA 201/2009, the court held that an “opportunistic act” would attract a starting sentence at the lower end of the range, being 12 months.
21.
Regarding Form 8 holders, the Court of Appeal confirmed in
HKSAR v Singh Gursevak
, CACC 139/2018, the status of a From 8 holder is an aggravating factor so that such holders are firmly discouraged from being involved in crimes while they “enjoy” the freedom to live in Hong Kong as they await the resolution of their claims”.  It also opines that the enhancement of the sentence is best left to the discretion of the sentencing judge or magistrate.  Mr Corlett then referred to para 44 of the case in particular which referred to the need for the sentencing court to bear in mind the starting point and the totality principle.
22.
It was submitted that the initial starting point this court should adopt in sentencing D1 should be on the lower end of the range (namely 12 months’ imprisonment)  given the opportunistic nature of the offending and the relatively modest value of what was taken (some $154.90 cash, and an iPhone).
23.
The aggravating factors (some of which were identified in
Ngo Van Huy
)  that apply in this case are:-
(a)  Scissors were used to cut open PW1’s pocket;
(b)  D1 did not act alone;
(c)  D1 is a Form 8 recognizance holder; and
(d)  D1 committed the offence while on (court)  bail.
24.
While there are indeed aggravating factors, it was submitted that any uplift in the sentence to reflect those features ought to be tempered by the initial starting point so as not to produce a final sentence that is manifestly excessive for opportunistic offending involving items of relatively modest value.
25.
It was emphasized that the offending was not one of an organized or professional syndicate, but spontaneous and opportunistic without planning.
26.
It was submitted that it would be wholly open for the court to adopt an initial starting point of 12 months’ imprisonment; to increase that by say 3-6 months to reflect aggravating factors; and to adopt a final starting point of 18 months or less.
27.
D1 shows remorse by pleading guilty at the first opportunity.  The court is urged to give D1 the full 1/3 discount to reach his final sentence.
D2
28.
Ms Bina Sujanani of counsel assigned by the Director of Legal Aid mitigated on behalf of D2.  The following is a summary of the mitigation submissions.
29.
D2 is single.  He came to Hong Kong in 2010 from Pakistan and applied for torture claim.  His application is under process.
30.
This is not a well-organized or sophisticated pickpocketing case.  It appears to be opportunistic with no planning.  The theft was carried out by only two persons.  The victim woke up in the course of the theft.  D1 ran with the victim’s mobile phone while D2 apparently dropped the wallet at the scene of the theft; the wallet was later found at the scene.  D2 at the point of arrest was found with none of the stolen property.
31.
HKSAR v Ngo Van Huy
,
supra
, at para 9, provides guidelines on sentencing on pickpocketing cases:
- The guideline sentence is 12-15 months after trial
- Comments on aggravating features listed in the judgment:
(a)  The scissors in this case were used by D1 to cut open the trouser pocket of victim; D1 seemed to play the major role; not used by D2;
(b)  The offence does not take place in a crowded place; so not an aggravating feature in D2’s case;
(c)  D2 committed the offence with D1 only; not part of an organized and professional ring of thieves; D2 is not a professional pickpocket; and
(d)  D2’s previous convictions are not similar; D2 is not a repeat offender of theft; so not an aggravating feature for D2.
32.
The greatest mitigation factor is D2’s guilty plea.  The stolen property is recovered.
33.
According to the guidelines in
Ngo Van Huy
, Ms Sujanani suggests:
(a)  A starting point of 12-15 months, or 12 months if
HKSAR v Ho Ching
,
supra
, is followed;
(b)  For aggravating feature of committing the crime with another person: add 3 months;
(c)  For D2’s torture claimant status ie a Form 8 holder, an additional 3 months to be added to the sentence (see para 21 of
HKSAR v Junaid Ahmed
, CACC 79/2017); the present case is only a simple case of pickpocketing; and
(d)  This results in sentence of 18-21 months’ imprisonment, or 18 months if
Ho Ching
is followed; discounted by one-third for guilty plea to 12-14 months’ imprisonment, or 12 months if
Ho Ching
is followed.
34.
Regarding the suspended sentence for possession of dangerous drugs, Ms Sujanani urges the court, after taking into account the totality principle, not to fully activate the sentence of 8 months.  Ms Sujanani submits that pickpocketing is a different offence from the DD offence; that it was opportunistic, not planned; that D2 did not intend to breach the provisions of the suspended sentence.
Sentence
35.
With respect to the judge who heard the magistracy appeal in
HKSAR v Ho Ching, supra
, the facts there differ from the present facts.  Moreover, that case does not set out to lay down any sentencing principles and, in any event, has no binding force on this court.
36.
Although the offending act was opportunistic, any mitigating value this may have is cancelled out by the fact that that two defendants took advantage of a sleeping man.
37.
Taking into account one of the stolen property (though recovered)  in this case was a mobile phone the loss of which will cause great inconvenience to the owner, I adopt an initial starting point of 14 months for both defendants.  The cutting of shorts pocket by scissors was obviously done in the presence of both defendants.  Both must be held responsible.  The defendants acted in concert though it is unclear from the evidence which defendant was the mastermind.  Both are Form 8 recognizance holders.
38.
For the above three aggravating factors common to both defendants, the starting point of both is enhanced by 6 months to 20 months.
39.
D1 is a repeat offender of dishonesty-related offences and he committed the present offence while on bail.  For these two aggravating factors, his starting point is further enhanced by 4 months to 24 months.
40.
In arriving at the enhancement figures, I have considered the initial starting point and the totality principle.
41.
Both defendants pleaded guilty in good time and are entitled to the full 1/3 discount in sentence.  There are no other mitigating factors of weight to justify any further reduction in sentence.
42.
D2 committed the present offence while under a live suspended sentence. Despite the fact that the offending act seems to be an opportunistic one, and differs in its nature from the previous offence bringing about the suspended sentence, D2 should have thought twice before taking the risk to commit the presence offence.  I activate the suspended sentence to the tune of 6 months.
(D1 and D2, please stand)
43.
The sentence for D1 is 16 months’ imprisonment.
44.
The sentence for D2 in the present case is 13 months and 10 days’ imprisonment.
45.
In respect of D2, I activate his suspended sentence to the tune of 6 months.  After taking into account totality, I order that 12 months of his sentence for the present case do run consecutively to his 6 months under the activated part of the suspended sentence.  D2 will serve a total sentence of 18 months’ imprisonment.
( Isaac Tam )
District Judge