HKSAR v. LUO XIAOSHAN

DCCC 1057/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1057 OF 2013

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Reasons for Sentence

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1. The defendant, Luo Xiaoshan, appears before me facing seven charges of theft. She pleaded guilty to Charge 1, Charge 2, Charge 5, Charge 6 and Charge 7. She admitted the facts pertaining to those charges. She pleaded not guilty to Charge 3 and Charge 4.

2. At the request of the prosecution, I ordered that Charge 3 and Charge 4 be kept in court file, not to be proceeded with without court’s leave.

3. For the charges that the defendant pleaded guilty to, the facts reveal that on 5 October 2013 at about 7.25 pm, a team of police officers were conducting anti-crime patrol in plainclothes in Mong Kok.  They spotted the defendant kept staring at the rucksacks and bags of passers-by at the junction of Argyle Street and Sai Yeung Choi Street South.  Because of the suspicious behaviour of the defendant, the police officers put the defendant under observation.

4. Eventually, the police officers intercepted the defendant outside a congee shop nearby.  The police searched the handbag of the defendant and found seven mobile phones, including Exhibits 1 and 2, 5, 6 and 7.  Exhibits 1, 2, 5, 6 and 7 were in fact the respective stolen properties of Charges 1, 2, 5, 6 and 7.

5. In the video recorded interview, the defendant admitted that she entered Hong Kong alone via Lo Wu border at about noon on 5 October 2013.  She took the MTR to Mong Kok thereafter and she admitted Charge 1, Charge 2, and Charge 5 to 7.

6. The owner of Exhibit 1, Miss Ma, was shopping with her friend in the afternoon on 5 October 2013.  She arrived at the basement of Ginza Plus, 2A, Sai Yeung Choi Street, Mong Kok, at about 2.15 pm.  After she read a WhatsApp message, she put her smartphone inside her handbag and then she zipped it.  At about 2.25 pm, she found her mobile phone missing and her handbag was being unzipped.  Charge 1 took place in a Saturday afternoon in Mong Kok.  The offence location was a crowded place.

7. Miss Chow was the owner of Exhibit 2.  She went shopping with her friend at Argyle Centre, Phase 1, No. 65 Argyle Street, Mong Kok at about 6.15 pm on 5 October 2013.  At 6.30 pm she found her smartphone with a pink phone case missing from her handbag. Charge 2 took place in a Saturday afternoon in Mong Kok.  The offence location was a crowded place.

8. The defendant has a clear record in Hong Kong.

9. The antecedent statement of the defendant shows that she is now aged 38.  She had received primary education in China.  A housewife in China, she resided with her husband, adopted son, father and mother in China.  She is now into her seventh month pregnancy.

10. Mr Littlewood told me in mitigation that the husband of the defendant had deserted the family.  The defendant came to Hong Kong for the purpose of buying medicine for her pregnancy. While the defendant was in Mong Kok, she succumbed to momentary greed.  She is now remorseful.  She pleaded guilty at the first available opportunity. 

11. Mr Littlewood submitted that the defendant was acting alone.  She used no tool in the course of stealing and the facts show that she was not a skilled thief.  She is now into her 7½-month pregnancy.

12. The authorities show that a starting point of 12 to 15 months is appropriate for an offence of this kind.

13. Mr Littlewood handed up a mitigation letter written by the defendant.  The defendant expressed her remorse in the letter.  She wanted to return to China as soon as possible.

14. In sentencing the defendant, I have borne in mind the number of charges, the way the defendant committed the offences (ie by pickpocketing).  Charge 1 and Charge 2 took place in a Saturday afternoon in Mong Kok.  The offence locations were crowded places in busy shopping areas.  As for Charge 5 to Charge 7, the facts show that these three offences were committed in Mong Kok.  There is no evidence that the offence locations were crowded or not.

15. I am aware that the defendant is now into her 7½-month pregnancy.  The pregnancy of the defendant is not a mitigating factor as such.  Before the defendant decided to steal in Hong Kong, she should have thought about the consequences.

16. I have considered the case Lei Guixin, CACC 257/2012.

17. The factors of Lei are similar to the facts in the present case.  The applicant was a two-way permit holder.  He stole a smartphone in a busy shopping area in Mong Kok.  The Court of Appeal in Lei reckoned the appropriate starting point for a first offender for an offence of this type should be 12 to 15 months’ imprisonment.  As the applicant was a two-way permit holder, the Court of Appeal opined that a starting point of 15 months was appropriate on the facts of that case.  Given the fact that the offence location was a crowded shopping area, the Court of Appeal opined that an enhanced starting point of 3 months was appropriate.

18. For Charge 1 and 2 in the present case, a starting point of 15 months’ imprisonment is appropriate.

19. As the defendant committed the offence in a crowded shopping area in Mong Kok, I will take a higher starting point of 18 months.

20. The defendant is entitled to a full one-third reduction for a clear record and her guilty pleas to Charge 1 and 2.

21. For Charge 1 and 2, I sentence the defendant to 12 months’ imprisonment on each charge.

22. For Charge 5, 6 and 7, a starting point of 15 months’ imprisonment is appropriate for each charge.

23. Similarly, I would allow the defendant one-third reduction for her guilty plea and clear record.

24. For Charge 5, Charge 6 and Charge 7, I sentence the defendant to 10 months’ imprisonment for each charge.

25. The defendant committed five charges of theft in a short span of a few hours on the first day of her arrival in Hong Kong.

26. Bearing in mind the totality principle, in my judgment a total sentence of 18 months’ imprisonment would sufficiently reflect the overall criminality of the five offences that the defendant committed.

27. To achieve that end, I order the sentence for Charge 1 and 2 to run concurrently with each other.  The sentences for Charge 5, Charge 6 and Charge 7 shall run concurrently with each other, but 6 months of the sentences for Charge 5, 6 and 7 shall run consecutively to the sentences for Charge 1 and 2.

28. The total sentence is, therefore, 18 months’ imprisonment.