HKSAR v. KOU ZHENTAO AND ANOTHER

DCCC401/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 401 OF 2011

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Reasons for Sentence

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1.  D1 pleads guilty to Charges 1, 2 and 4. D2 pleads guilty to Charge 4 only. His other charge, i.e. Charge 3, is left in the court’s file.

2.  On 6 March 2011, at about 7.40 pm, police saw both defendants acting furtively at the junction of Dundas Street and Sai Yeung Choi Street South, Mongkok, Kowloon.  We all know that is a busy spot.  D1 opened the shoulder bag of a female pedestrian and attempted to take an Octopus card out of the bag.  D2 used a jacket to cover D1’s devious acts.  Police stopped both defendants and searched them.  They found a Nokia phone valued at about HK$1,500 in D1’s bag.  In D2’s bag, they found an LG phone valued at about $1,700. 

3.  One Madam Lee found herself missing the said Nokia phone at around 2.15 pm on that day at Mongkok MTR Station. Another pedestrian, Madam Tsang, found herself missing the said LG phone at around 5.30 pm on the same day at the junction of Argyle Street and Nathan Road, Mongkok.  

4.  Both defendants admitted to the police of their committing Charge 4.  D1 also admitted his dealing the LG phone on his own.  In court, D1 admits that he stole that phone from the person of the pedestrian Madam Tsang.  As to the Nokia phone found in his bag, D1 told police that an unknown male gave that phone to him in Mongkok around 5 pm that day. He suspected it was stolen property.  Nevertheless, he took it and wanted to take it back to China.  In court, D1’s counsel said D1 actually got the phone from a person called Ah Yuk whom D1 knew.  The Nokia phone was a bit damaged on the screen, but D1 knew Ah Yuk had come to Hong Kong to steal, so D1 believed the Nokia phone was stolen property. 

5.  Both defendants arrived at Hong Kong on 2 March 2011 as visitors.  They were allowed to stay here for seven days. On that day, they arrived at Hong Kong at different hours with an interval of about two hours in between.  Immigration record shows that this is the fourth time D1 has entered Hong Kong and the sixth time for D2.  Both counsel say that their clients only met shortly before they committed Charge 4 together.

6.  D1 is now aged 26.  He has a clear record in Hong Kong.  D2 is aged 41.  He has three previous convictions in Hong Kong between 1993 and 1997.  In 1993, he was convicted of assault with intent to rob and possession of offensive weapon.  In 1995 and 1997, he was twice convicted of remaining in Hong Kong unlawfully.

7.  Prosecutor refers me to the guideline case for pickpocketing offences, that is the case of Ngo Van Huy CACC107 of 2004.  Counsel for both defendants also mentioned that case in the submission. Counsel for D2 also addresses me in some detail on the case of Chiu Suet Yee, Angel CACC105 of 2010. 

8.  About defendants’ backgrounds, both counsel say their clients have family in China.  Both defendants have tight finance.  D2 was even in debt.  Counsel says D1 came to Hong Kong this time to buy milk powder for his child.  He was here incited by one called Ma Lung to steal.  He met D2 shortly before they together committed Charge 4.  Counsel says D1 was not a professional thief.  He had been frank in admitting all his guilt. He says D1 has promised not to offend again, and he asks this court to be as lenient as possible towards D1.

9.  In his mitigation, counsel for D2 agrees that in the present case, there are some aggravating factors, i.e. D2 committed Charge 4 together with D1 and that offence was committed in a busy area.  Counsel says that this court should not treat D2 as a person of bad record because his previous convictions were either stale or not similar.  And while D2 committed Charge 4 with D1 together, this court should not view them as a professional gang.

10.  In the present case, both defendants committed Charge 4 together.  They attempted to steal an Octopus card from the bag of a lady pedestrian.  Aggravating factors aside, the starting point for both of them in this charge should be one of 12 months’ imprisonment, but there are indeed aggravating factors.  Charge 4 was committed in a busy area in Kowloon that justifies an addition of 3 months’ imprisonment.  Both defendants acted in concert.  That adds another 3 months.  Both defendants came from China and they arrived at Hong Kong on the same day.  And considering what they did on the day when they were caught, I do not believe they came for solely lawful purposes. Normal visitors would not commit such pickpocketing acts.  They could not because pickpocketing needs certain skill and experience, and the facts reveal that both were not amateurish thieves.  I am sure both defendants came to Hong Kong on this occasion to do what they did for which they were caught on 6 March 2011. And for their coming to Hong Kong for such illicit purpose, i.e. to do unlawful stealing as pickpocketer, I add another 3 months to the sentence.

11.  So the final starting point for both defendants in relation to Charge 4 is one of 21 months’ imprisonment.  I give each of them a one-third discount for their pleas of guilty on this charge.  On Charge 4, both defendants are sentenced to 14 months’ imprisonment.

12.  D1 pleads guilty to two other charges, i.e. Charge 2 and Charge 1.  Charge 2 is also a pickpocketing charge.  I adopt 12 months’ imprisonment as the basic starting point for this offence.  It was committed in a busy area.  I add 3 months to the starting point.  As said, I am sure D1 came to Hong Kong on this occasion not for a lawful purpose but to act as a thief, and for this, I add another 3 months to the starting point.  So for Charge 2, the final starting point is one of 18 months’ imprisonment.  I give D1 one-third discount for his plea of guilty on this charge.  On Charge 2, D1 is sent to prison for 12 months.

13.  As to Charge 1, i.e. handling stolen goods, in the circumstances of the case, I adopt 12 months’ imprisonment as the starting point.  I give D1 one-third discount for his plea of guilty to this charge.  On Charge 1, D1 is sent to prison for 8 months.

14.  Charges 1, 2 and 4 committed by D1 on 6 March 2011 were actually separate offences.  They, however, can be said to be of a similar nature and certainly occurred around proximate times.  Considering this and considering the totality principle, I order 6 months’ imprisonment of Charge 2 and 4 months’ imprisonment of Charge 1 to run consecutively to each other and also consecutively to the prison term imposed for Charge 4.  So D1 for these three charges has to go to prison for a total of 24 months.