HKSAR v. TSUI SHU ON

DCCC1162/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1162 OF 2009

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Reasons for Sentence

1.  The defendant pleaded guilty to 1 charge of theft. This is a case of pickpocket by a team of two persons.

2.  The events happened on a Saturday (19 September 2009) afternoon at about 4 pm on the streets of shamshuipo in Kowloon. The victim was walking along Un Chau Street. He suddenly felt a bump from behind. When he turned around, he saw the defendant taking his (the victim’s) wallet out from the outer pocket of the victim’s shoulder bag.

3.  The defendant quickly passed the victim’s wallet to his accomplice. The defendant and his accomplice dashed off in different directions. The victim gave chase to the defendant and eventually got hold of the defendant with the assistance of a patrolling police officer.

4.  The defendant’s accomplice made off with the wallet.

5.  In these events the victim lost his Hong Kong Identity card, his Hong Kong driving licence, Home visit permit, an Octopus card, an ETC card, an ATM card and cash HK$8,000.

6.  The defendant was born in the mainland. He got married in the mainland but was divorced in 1994. He came to Hong Kong in 2001. He lived on his own and worked on casual basis as a delivery worker or as a construction site worker. He had his first conviction of theft in 2004. In September the same year he was sentenced to a total of 5½ years for drug offences. In March 2009 the defendant was found guilty of possessing obscene articles for publication and was sentenced to a term of 6 months imprisonment. On 19 September 2009 he was arrested for the present pickpocket offence.

7.  In mitigation it was said the defendant had psychiatric problems and was attending psychiatric out-patient treatments. Hence this court called for the defendant’s background report and 2 psychiatric reports before sentence. In the defendant’s psychiatric report, the defendant was considered to be fit to plead. He had long history of drug abuse, including use of heroin and amphetamine. The psychiatrists were of the opinion that though the defendant had paranoid schizophrenia, there was no sign of overt relapse. Hospitalization is not considered necessary.

8.  The sentencing approach for the offence of theft by pickpocket can be found in the Court of Appeal decisions of Ngo Van Huy [2005] 2 HKLRD 1 and Yip Chung Man CACC-246/2006.

9.  The starting point of 12 – 15 months imprisonment is the usual range of sentence for a first offender who committed the offence on his own, on a spur of momentary greed.

10.  The defendant acted in concert with his accomplice in the busy streets of Shamshuipo to accomplish the theft of the victim’s wallet, causing the victim to lose cash HK$8,000, bankcards and identification documents. The defendant and his accomplice sped off in different directions making the apprehension of both of them and the recovery of the stolen properties difficult.

11.  When the offence is the result of planned concerted act practiced in a busy area, the usual starting point would be in the range of 18 months to 2½ years. [2 years and 3 months starting point was adopted by Ma CJHC, Stock and Cheung JJA in Ngo Van Huy [2005] 2 HKLRD 1]; [2½ years starting point was adopted by Kempster JA in Nguyen Phan Linh CA-454/1989 (facts almost on all fours with the present case), and by Chan J (as he then was) in Saldana in CACC-655/1996, by Stuart-Moore VP in Doan Van Do inCACC-286/2004, by Lugar-Mawson J in Liao Mei CACC-432/2004, and by Mr. Justice Yeung in Tang Hon Sheung CACC-238/2005.]

12.  I accept there is no suggestion that the defendant is a pickpocket recidivist, though he certainly acted in a team. He had 1 previous of theft and his other offences were mostly drug related. Bearing in mind it was a busy road on a Saturday afternoon and the defendant acted in concert with his accomplice, the loss of the victim was never recovered, I consider a starting point of 2 years imprisonment appropriate. Giving the defendant credit for his plea of guilty, I accord him a 1/3 discount and order the defendant to serve a term of 16 months imprisonment (being 2/3 of a 2 years term).