HKSAR v. LUI HOI YAN

DCCC 571/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 571 OF 2014

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Reasons for Sentence

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1.  The defendant pleaded guilty to two charges of theft from a person and one charge of possession of 0.03 grammes of midazolam.

2.  The victim in the 1st charge, a 24-year-old lady called Miss Chan, was out shopping at 7.30 pm on 24 March in the Mongkok area.  She was carrying a shoulder bag with her mobile phone inside, and subsequently she found the mobile phone was missing.

3.  Later that same day, Miss Chung Mung, who is aged 45, was shopping with her husband near Grand Tower in Nathan Road, Mongkok.  Upon finishing the phone conversation, she put the iPhone into her jacket pocket.  About a minute later, she found that her iPhone was missing but she noticed that the defendant was holding a very similar iPhone, standing 1 metre away from her, and the defendant fled into the Grand Tower and threw away the iPhone onto the ground.  PW2’s husband, PW3, chased after the defendant and eventually subdued her, and the matter was reported to the police.

4.  The defendant admitted theft of the iPhone from PW2.  She said she did it out of greed.  She was searched and in her possession was found the mobile phone belonging to PW1 and also the drugs, the subject of Charge 3.  The defendant admitted the theft of PW1’s mobile phone and possession of the midazolam tablets.

5.  PW1 later identified the mobile phone recovered from the defendant as her missing mobile phone which was valued at $2,300.  The iPhone belonging to PW2 was recovered from the scene and was valued at $5,500.

6.  PW3 sprained his right foot after chasing after the defendant.

7.  The defendant has appeared before the court on eight previous occasions in respect of 11 offences.  Seven of those were for theft and three were for possession of dangerous drugs.  In October 2012, in respect of two charges of theft, she was sent to prison for a total of 19 months.  I was told that she was released from that sentence on 28 September of last year, and I am told that on previous occasions she has been sentenced to go to the drug addiction treatment centre both in respect of drug-related offences and for pickpocketing offences.

8.  The defendant is 37 years of age.  Her husband is aged 52 and is a part-time construction worker.  They have four children aged between 6 and 14, and the elder two children are staying with a foster family.  The defendant lives together with her husband and two other children. I am told that the defendant receives CSSA of $13,000 per month but out of that, 6,000 has to go to pay the rent and utilities and a further 6,000 goes to the foster parents to support her two children.  I am told that her husband is presently unable to work.  He was diagnosed with hepatitis, and he is now receiving a disability allowance.  I am told that their income is insufficient to meet the needs of the family.

9.  In mitigation, it was emphasised that the defendant immediately admitted the offences when she was detained by the police and pleaded guilty at the first opportunity when she appeared before the court.  Clearly, the defendant is a recidivist and she is clearly an expert pickpocket.  Neither of the victims noticed their mobile phones being stolen. It was only after the phone was stolen from the second victim that she noticed the defendant was nearby, in possession of a similar mobile phone, and she found her phone was missing.

10.  Mobile phones are a very common target for pickpockets.  Theft of mobile phones is rampant in Hong Kong as one can dispose of them quite readily.   

11.  An aggravating feature of this case is that the defendant, when it was discovered that she had stolen the phone, immediately ran off.  She had to be chased by the husband.  Had the husband not been there, she would have got away with it.  In chasing after the defendant, the husband sprained his right foot.

12.  The usual starting point for offences of this nature is 12 to 15 months.  Aggravating features are that the offences were committed in a crowded place and another aggravating feature can be the record of the defendant concerned. 

13.  Having considered all the circumstances of this case, it seems to me that the appropriate starting point given the aggravating features is a sentence of 15 months, not 12.  It is conceded by the defence that these thefts occurred in crowded places and that would attract an additional sentence of 3 months’ imprisonment.

14.  The defendant has a bad record for offences of this kind and had only been released a year before for two identical offences for which she was sentenced to a total period of 19 months’ imprisonment. 

15.  In respect of each of the theft offences, I take a starting point of 27 months’ imprisonment.  The defendant will be given full credit for her guilty plea.  That will therefore reduce the sentence by one-third. The sentence on each offence will be one of 18 months’ imprisonment.

16.  I have to consider the question of totality. Having looked at all the circumstances and having considered the record of the defendant, it seems to me that it would be appropriate to order that 4 months of the sentence on Charge 2 should run consecutive to the sentence on Charge 1.  The total sentence for those two offences will be 22 months’ imprisonment.

17.  In respect of Charge 3, I note that the quantity of drugs involved is very small, the amount being 0.03 grammes of midazolam, and the defendant admits that it was for her own consumption.  I note the defendant has previously been convicted of offences involving possession of dangerous drugs and has been imprisoned on previous occasions for such offences.    

18.  Having considered the circumstances and the amount involved, what I order is that the defendant go to prison for 1 month in respect of that offence.  It is an offence of a different nature from Charges 1 and 2.  So I order that it run consecutive to those charges and that the total imprisonment therefore is one of 23 months’ imprisonment.