HKSAR v. WONG HON TING (also known as WONG WA CHI, WONG CHI KEUNG and WONG HUNG LAM)

DCCC 696/2019

[2021] HKDC 1021

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 696 OF 2019

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of theft, contrary to section 9 of the Theft Ordinance[1] and one charge of failing to surrender to custody without reasonable cause, contrary to section 9L (1)  and (3)  of the Criminal Procedure Ordinance[2].

2.  Full particulars of the offences are set out in the amended summary of facts admitted by the defendant.  

Theft

3.  The theft is one of pickpocketing.  In summary at around 7:15 p.m. on 3 May 2019 Mr Shum was purchasing a takeaway from “Bao Dim Superman” on the Ground Floor of No. 23 Argyle Street in Mong Kok. 

4.  After paying for the takeaway Mr Shum placed his wallet, containing $3,820 cash, his Hong Kong identity card, Home Visit Permit, driving licence, Octopus card, Senior Citizen card and two bank cards, in the outer pocket of his shoulder bag.

5.  Shortly after Mr Shum discovered his wallet was not in his shoulder bag.  Mr Shum turned round and saw the defendant walking away from him.  Mr Shum stopped the defendant who took the wallet out of his trouser pocket and returned it to Mr Shum.  A report was made to the police. 

6.  The defendant was arrested.  Under caution the defendant admitted stealing the wallet out of momentary greed.

Failing to surrender to custody without reasonable cause

7.  The defendant appeared in the District Court on 17 December 2019 when the case was adjourned to 23 January 2020.  The bail of the defendant was extended[3]. 

8.  The defendant failed to attend the District Court on 23 January 2020 when a warrant for his arrest was issued.  On 20 May 2021 the police arrested the defendant on the street in Sham Shui Po.  Under caution the defendant said he could not afford a lawyer and was scared to attend court.

Mitigation

9.  In passing sentence, I have carefully considered the oral and written submissions of Mr Ng, including that the defendant who is 69 is married with no children and that his wife who lives in the Mainland has been approved to emigrate to Hong Kong[4]. 

10.  I have read the defendant’s mitigation letter dated 7 July 2021 in which the defendant sets out his history since coming to Hong Kong in 1972 and how he became a drug addict[5]. The defendant says he has seen the light and is determined to say no to drugs[6].

Guidelines

11.  In HKSAR v Ngo Van Huy the Court of Appeal confirmed the guideline sentence for pickpocketing after trial is 12 to 15 months for a first time offender, where there are no aggravating features[7]. 

12.  In determining where in the range of 12 to 15 months a sentencing court should commence will depend on the facts of the case including the circumstances of the theft; the value of the property stolen; the age or vulnerability of the victim and the expertise used in the theft. 

13.  Taking into account the age of Mr Shum, 68, I am satisfied a starting point after trial of 15 months’ imprisonment is appropriate[8]. 

14.  Aggravating features include where the offence is committed in a place in which the public is at particular risk such as crowded shopping areas where the pedestrian traffic is heavy and where the accused is a repeat offender or, worse still, a persistent offender. 

15.  Apart from the name of the street and the time there is no mention in the summary of facts whether the shop or the street was busy at the time of the theft.  I am told there was no CCTV and that no photographs were taken showing the shop or the location of the theft.  Mr Shum was also not asked whether the shop or the street was crowded at the time.   On being asked why no enquiries were made Mr Wong, having taken instructions from the police, informed the court that at that time “it was not really a crowded place”. 

16.  The defendant has appeared in court on 22 occasions amassing a total of 24 convictions with 19 offences of dishonesty, 8 specifically stated to be pickpocketing.  The defendant last appeared in court on 6 July 2015 when he was sentenced to 8 months’ imprisonment for one offence of pickpocketing. 

17.  The defendant was released from prison on 12 December 2015[9].  The present offence was committed just over three years later.   

18.  In considering whether to enhance the sentence Mr Ng asks the court to take into account that in the last ten years the defendant has only been before the court once in 2015[10].  I am satisfied the starting point is to be increased by 3 months to 18 months’ imprisonment. 

Timely plea of guilty

19.  The defendant’s plea is not a timely plea of guilty, the defendant having failed to surrender to court on 23 January 2020 and only being arrested in May this year, almost sixteen months later. 

Discount

20.  The usual range of discount afforded to a defendant who has absconded is about 20% to 25%[11]. 

21.  In HKSAR v Chow Tak-fuk Stock JA observed:[12]

“Whilst the courts must always encourage persons to surrender, so that some credit for that fact will normally be given, those who might be minded to flee should not be led to believe that if ultimately they return they will be in no worse position than had they not fled in the first place.”

22.  The defendant did not surrender.  I am satisfied the appropriate discount is one of 4 months’ imprisonment which is a discount of just over 22% and which reduces the sentence on charge 1 to 14 months’ imprisonment.

Failing to surrender

23.  The sentence for failing to surrender to court partly depends upon how long after failing to surrender a defendant is re-arrested and brought to court. Generally, the longer the period the longer the sentence.  

24.  Taking into account that the defendant was arrested almost sixteen months after failing to attend court, I am satisfied a starting point of 6 months’ imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty reduces the sentence to 4 months’ imprisonment.

Totality

25.  Failing to surrender to court is a wholly distinct and separate offence from the offence of theft.  In HKSAR v Ko Chun Hung the Court of Appeal, in rejecting the submission that the appellant had been punished twice for absconding, stated that by absconding the appellant had committed a fresh offence and had to be punished separately[13].

26.  A consecutive sentence is therefore appropriate subject to consideration of totality of sentence[14].

27.  I am satisfied a wholly consecutive sentence is appropriate making a total sentence of 18 months’ imprisonment, which I am satisfied properly reflects the defendant’s overall criminal culpability on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[15].

Sentence

28.  The defendant is convicted and sentenced as follows:

Charge 1 – 14 months’ imprisonment;

Charge 2 – 4 months’ imprisonment consecutive to charge 1.

The bail money of $1,000 is also estreated for failure to attend court[16].

The total sentence to be served by the defendant is 18 months’ imprisonment.