HKSAR v. LEE CHAK KIN

DCCC 965/2022

[2023] HKDC 1197

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 965 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea and agreement to Summary of Facts to a charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

Facts

2.  At around 5 pm on 17 May 2022, PW1, who was aged 55, was shopping outside a fruit shop at No 50 Shui Wo Street.  Just when PW1 crouched down and was picking up fruits, she felt that someone was touching the shoulder bag, which she carried on her back.  PW1 checked the bag and discovered the same was unzipped.  Her coin bag and Samsung mobile phone were missing.  She immediately looked back and saw 2 men running, one of them being the defendant.

3.  PW1 immediately ran after the defendant for about 10 metres and intercepted the defendant.  She asked the defendant to return her the belongings.  In response, the defendant used his left hand to take PW1’s coin bag from the left back pocket of the defendant’s trousers and dropped it on the floor.

4.  Just when PW1 was picking up her coin bag, the defendant ran away and PW1 immediately followed him.  During the process she yelled, “Thief!”.

5.  At this point, PW1 was approached by police officers (including PW2).  PW1 pointed the defendant to PW2 and said that the defendant had taken her mobile phone.  PW2 and others immediately pursued the defendant and eventually PW2 intercepted the defendant.

6.  In the course of running after the defendant, PW1 had fallen and suffered abrasions on her left wrist, knees and right forehead.

7.  The mobile phone of PW1 was later seized at No 48 Shui Wo Street from a man who picked up the same outside the fruit shop.

8.  Later on the same day, the defendant was arrested for theft.  Upon search, a pair of scissors was found inside the shoulder bag carried by the defendant.

9.  PW1’s coin bag was worth HK$70 and it contained HK$183. As for the mobile phone, it was worth about HK$7,000.

Criminal Record

10.  The defendant had 24 previous records involving convictions of 35 charges, out of which 8 of them were theft or attempted theft and 6 of them were robbery or attempted burglary convictions.

Mitigation

11.  The defendant is aged 67.  He was born in the mainland and came to Hong Kong in the year 1980.  He was educated up to Form 3.  He is divorced with 2 adult sons and is recipient of CSSA.

12.  Defence counsel referred this court to the case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 in which the Court of Appeal stated that the guideline sentence of 12 to 15 months after trial is appropriate for a first time offender.  In that case, it was said that a sentencing starting point should be enhanced by existence of aggravating features which included, inter alia, where the offence is committed in a place in which the public is at particular risk, such as crowded places like the MTR or the racecourse, crowded shopping areas where pedestrian traffic is heavy, and where the accused is a repeat offender or, worse still, a persistent one.

13.  The Court of Appeal in that case decided that the sentencing starting point was 15 months and in light of the appalling previous record of the defendant, the Court of Appeal decided to add 9 months to the sentencing starting point.  A further 3 months was added to the sentence since the offence was committed in a crowded area.

14.  The defendant was given one-third sentencing discount for his guilty plea but in the particular case the one-third discount was offset by a one-third enhancement under section 27 of the Organized and Serious Crimes Ordinance, Cap 455.

15.  Defence counsel also referred this court to the case of HKSAR v Wong Kai Chun, DCCC 562/2021, where the court took the same sentencing starting point of 15 months and enhanced it by 9 months as the defendant is a persistent offender and another 3 months by reason that the offence was committed in a crowded place.

16.  Defence counsel further referred this court to the cases of HKSAR v Chan Mei Lai and Another, DCCC 19/2017, and HKSAR v Tsui Chiu Kwai, CACC 452/2011.

17.  Defence counsel submitted that a sentence starting point of 15 months should be adopted in this case.  He submitted that although a pair of scissors was found inside the defendant’s bag, the same was irrelevant for the purpose of sentencing because PW1’s bag was unzipped at the time.

18.  Defence counsel conceded that the place where the defendant committed the offence was a crowded place. 

19.  He also submitted that because of the defendant’s poor criminal record, sentence enhancement is inevitable.  He asked this court to enhance the sentencing starting point by a period of less than 9 months.   He pointed out to this court that the latest conviction of the defendant was only in relation to dangerous drugs and the last attempted theft and burglary convictions were in the year 2009 and 2011 respectively.

20.  It was also said that there was nothing sophisticated about the act of the defendant. He is an old man overpowered by a lady and he dropped the phone on the spot and voluntarily surrendered the coin bag when intercepted. 

Discussion

21.  Any person on conviction upon indictment of this charge is liable to imprisonment for 10 years.  

22.  This court has carefully considered all that was said on behalf of the defendant in mitigation including the cited authorities.  

23.  In the Ngo Van Huy case, the Court of Appeal affirmed the sentencing starting point of 15 months for a pickpocketing recidivist who acted alone, and enhanced the same by 9 months because of the added culpability arising from the poor criminal record.

24.  Here the court will also adopt a sentencing starting point of 15 months’ imprisonment.  The defendant was a persistent theft offender but there was no similar convictions in the past 11 years.  For this reason, the court is going to enhance the sentencing starting point just by 3 months.

25.  The defendant committed the offence at a crowded place. For this reason, the court is going to enhance the sentencing starting point further by 3 months.

26.  The defendant has pleaded guilty and is therefore entitled to full one-third sentencing discount.  He is therefore sentenced to 14 months’ imprisonment in this case.