HKSAR v.WONG KING SHAN

DCCC42/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 42 OF 2012

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Reasons for Sentence

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The Charge

1.  This morning, the defendant pleaded guilty before me to a theft charge under section 9 of the Theft Ordinance, Cap.210.

2.  The charge was related to a pick-pocketing incident on 3 December 2011. 

The Facts

3.  The facts of the case are simple enough.  At around

11 am that day, as a female hawker (the victim) was busy doing business at her street stall at Ki Lung Street, Shum Shui Po, Kowloon, and when the stall and the pavement nearby was crowded, the defendant suddenly inserted her hand into the shoulder bag that was carried by the victim.

4.  The victim immediately realised that and she grabbed the hand of the defendant.  A struggle ensued and the defendant retrieved her hand with a pile of banknotes totalling HK$3,090, which later all fallen and scattered around onto the ground.  The defendant later struggled with the victim and tried to escape but was in vain.  She was intercepted by the passers-by and the police was called and she was later arrested.  Under caution, the defendant admitted stealing out of momentary greed. 

Criminal Record and the Mitigation

5.  The defendant is now aged 37.  She has appalling criminal records.  However, this is the first time she appeared in the District Court.  Since 1985, when she was only at the age of 13, she committed the first and similar pick-pocketing offence, for which she was given probation.  She did not mend her ways and continued to commit more and more similar offences.  She had been sentenced to the Training Centre and also imprisoned and along the way, she also became a drug addict and was sentenced to the DATC.  In total, ever since her first conviction, she has come before the Magistrate’s Courts and was convicted of a total of 14 offences, of which 11 are all theft related. According to the record, her last pick-pocketing record was in 2009 when she has been sentenced to the DATC. 

6.  According to the antecedent statement, the defendant has only a primary 5 education level.  According to her counsel, Mr Chan, the defendant was married but was divorced in 2003 and she had a daughter who is now 13 years of age.  The daughter is now taken care by the aged old mother of the defendant.         

7.  The defendant was unemployed before the offence. She lived on public assistance and received an amount of $6,700 each month.  Mr Chan informed the court that the defendant committed the present offence purely because of economic reasons. 

8.  A letter written by the defendant was also submitted to the court in which the defendant had mentioned that his father had suffered a stroke and the daughter had also sustained an injury in the leg and therefore the mother of the defendant was hard-hit by the pressure of taking care of his daughter.  The defendant said that she was now deeply remorseful and she had the support of a group of inmates who have been converted to Christian faith.  She hopes the court can be as lenient as possible so that she can be released as soon as possible to take care of the daughter and also the parents.         

9.  In sentencing, I refer myself to the guidelines laid down by the Court of Appeal in the case of HKSAR v Ngo Van Huy, CACC107/2004, an authority for sentence in cases relating to pick-pocketing:

“(1) Theft by pickpocketing can be regarded as the type of offence that society severely and rightly condemns. Although in many cases, the value of the items stolen may not amount to much, the significant degree of inconvenience, the relative case with which it can be effected by a direct invasion of or about the person and privacy of those minding their business in public places, and the adverse reputation that this type of crime collectively brings upon a city makes this offence a particularly serious one. It is one which attracts, and justifiably in our view, a heavy penalty.

(2) The guideline sentence of 12-15 months after trial is therefore appropriate for a first time offender. This is an immediate custodial sentence, not a suspended one.

(3) Of course, account must be taken of the existence of any aggravating, or particular mitigating, features before the court.

(4) Aggravating features include: -

(a) The presence or use of a weapon.

(b) Where the offence is of committed in a place in which the public is at particular risk, such as crowded places like the MTR or racecourse, crowded shopping areas where the pedestrian traffic is heavy.

(c) If the accused commits the offence in conjunction with another, the sentence should be higher.

(d) Where the accused is a repeat offender or, worse still, a persistent one.”

10.  In the present case, the court can clearly identify two obvious aggravating factors.  Here the defendant by her record is a persistent and repeated offender and the offence was clearly committed in a crowded market area at the time when the market was full of people around. 

11.  As I have quoted, the guideline sentence of 12 to 15 months after trial is only appropriate for a first time offender.  I consider that in the defendant’s case I should adopt 15 months as a starting point.  

12.  The defendant’s previous record shows that she is a repeated offender and for this reason I shall also increase her sentence by 6 months.  Finally, there was the aggravating feature that the offence was committed in a crowded market area and so a further 3 months would also be added. 

13.  There is no other mitigating factors apart from the fact that the defendant has pleaded guilty. 

14.  I have every sympathy for the family members of the defendant but in a serious offence such as the present, the Court of Appeal had already said that family circumstances had no part to play in mitigation. The defendant should think about the circumstances of her family before she saw fit to commit similar crime again.      

15.  Therefore, the total starting point should be 24 months. 

16.  After giving the defendant the one-third customary discount, she is therefore sentenced to 16 months’ imprisonment.