HKSAR v. WONG KING SHAN

DCCC 337/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 337OF 2017

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REASONS FOR SENTENCE

1.  Wong King Shan you have pleaded guilty to three charges of theft, contrary to section 9 of the Theft Ordinance[1].

2.  Full particulars of the offences are set out in the facts admitted by you on 7 August.  In summary in the afternoon of 26 February this year you committed three offences of theft, commonly called pickpocketing.

3.  Briefly at 3:30 p.m. Indonesian female Indatatik was walking along Fuk Wah Street in Sham Shui Po.  Mr Tsang, who was standing at his stall on Fuk Wah Street, saw you unzip the handbag of Ms Indatatik and take out her wallet from the handbag (charge 3). 

4.  Mr Tsang immediately screamed “stealing, you pickpocket” whereupon you immediately dropped the wallet.  Ms Indatatik turned round and recovered her wallet.  Mr Tsang intercepted you and called ‘999’.  

5.  After the police arrived WPC 10305 conducted a search on you and found in your handbag an LV wallet containing the identity card of Vietnamese female Nguyen Thi Quynh.  The LV wallet belonged to Ms Nguyen.  

6.  Ms Nguyen had placed her wallet in her backpack while shopping on Fuk Wah Street.  Around 3:30 p.m. Ms Nguyen found her backpack had been unzipped and her wallet containing her bank card; HKD1,000 cash and her identity card missing.  Ms Nguyen last checked her wallet was in her backpack at around 3 p.m. that afternoon (charge 2).   

7.  WPC 10305 also found in the right pocket of your jacket HKD1,500; IDR2,000 and a wrist chain. The money and the wrist chain belonged to Indonesian female Yuliani.  Ms Yuliani had placed the money in her wallet and put the wallet together with the wrist chain in her backpack while shopping on Fuk Wah Street. 

8.  Ms Yuliani last checked her wallet and the wrist chain were in her backpack at around 3 p.m. that afternoon.  Around 3:15 p.m. Ms Yuliani found her backpack had been unzipped and her wallet missing.  The wallet, valued at $100, has not been recovered (charge 1).  

9.  You were also found in possession of HKD25,198, some foreign currency and some shopping coupons.  In a video recorded interview, you told the police the money was your accumulated savings and subsidy from your family. 

Mitigation

10.  In passing sentence, I have carefully considered everything said on your behalf by Mr Tang together with your mitigation letter.  Mr Tang tells the court in September 2013 you fell from height breaking your leg and injuring your back. Consequently, you have been unable to find work and now rely on CSSA and disability allowance.

11.  From your criminal record the courts appear to have given you considerable sympathy and leniency since your accident.  In your first appearance after the accident you were given a suspended sentence[2]. You next appeared in the District Court when you were sentenced to 15 months’ imprisonment for two offences of pickpocketing[3], which sentence was less than the sentence imposed when, prior to your accident, you appeared in the District Court in 2012 for one offence of pickpocketing[4]. 

12.  Whilst the court has sympathy with anyone suffering serious injuries, the injuries clearly have not stopped you from committing offences of pickpocketing.   Notwithstanding the leniency of the courts in 2013 and 2014 you again appeared in court in May 2015 when you were sentenced by the Tsuen Wan Magistracy to 10 months’ imprisonment for one offence of theft. 

Guidelines

13.  In HKSAR v Ngo Van Huythe Court of Appeal confirmed the guideline sentence for pickpocketing after trial is 12 to 15 months imprisonment for a first offender, where there are no aggravating features[5]. 

14.  In determining where in the range of 12 to 15 months a sentencing court should commence will depend on the facts of the case including the circumstances of the theft; the value of the property stolen; the age or vulnerability of the victim and the expertise used in the theft.  The sentencing court will however need to avoid double counting by taking into account a matter later considered as an aggravating feature[6]. 

15.  In HKSAR v Wong Kang Sun[7], cited by Mr Tang, the Court of Appeal held that in similar circumstances the appropriate starting point before a consideration of aggravating features was 12 months’ imprisonment.  I am satisfied a starting point of 12 months’ imprisonment is appropriate for each offence.   

Aggravating features

16.  Aggravating features include where the offence is committed in a place in which the public is at particular risk, such as areas where the pedestrian traffic is heavy.  This was a Sunday afternoon when Fuk Wah Street was very crowded[8].  I increase the starting point for each offence by 3 months to 15 months’ imprisonment.

17.  The fact an accused is a persistent offender is an aggravating feature.  You have appeared in court on 19 occasions amassing a total of 38 previous convictions with 30 for theft or attempted theft.  Seven are specifically stated to be pickpocketing.  You last appeared in court on 18 March 2015 when, as noted earlier, you were sentenced to 10 months’ imprisonment for one offence of theft.  I am satisfied the starting point is to be further increased by 9 months to 24 months’ imprisonment, which is the same enhancement as in HKSAR v Wong Kang Sun. 

18.  Giving you full credit for your pleas of guilty reduces the sentence on each of charge to 1 year and 4 months’ imprisonment.

19.  Mr Tang informs the court today that he has been told by your mother that you have long term mental illness and showed to him the medication you are prescribed by the Kowloon Hospital.  Your mother says that on the day you committed the offences you had taken more medication than usual and may have been under the influence of the medication.

20.  Mr Tang says you told him about taking the medication but as you did not wish the court to think that you were making an excuse for your offences this was not mentioned to court earlier.   Whilst I have sympathy with any one suffering from mental illness I am satisfied in the circumstances, even if you were acting under the influence of the medication, this does not reduce your culpability whereby there should be further discount of the sentence.  

Compensation

21.  As discussed in court I propose to make compensation orders so that Ms Yuliani and Ms Nguyen suffer no loss.  The payment is to be made from the monies seized from you pursuant to my powers under section 30 of the Theft Ordinance and section 73 of the Criminal Procedure Ordinance[9].

22.  Mr Tang submits you should be given credit for these payments.  In mitigation no offer of compensation was made.  You wanted all the money to be returned to you.

23.  I am satisfied no further discount is to be given by reason of the court making compensation orders.  I will however take into account there has been no loss when considering totality of sentence[10]. 

Totality

24.  The three offences are separate and distinct, involving three different victims for which consecutive sentences are appropriate.  Taking into account the offences were committed within one hour of each other and that the three victims will have the property stolen returned to them or be compensated for their loss, I am satisfied a total sentence of 2 years and 4 months’ imprisonment properly reflects your criminality on the three charges.

Sentence

25.  You are convicted and sentenced as follows:

Charge 1 – 1 year and 4 months’ imprisonment;

I exercise my powers under section 30 (1)(c) of the Theft Ordinance and section 73(1) and (3)(a) of the Criminal Procedure Ordinance and order payment of $100 to Ms Yuliani being compensation for the loss of her wallet, payment to be made from the monies seized on apprehension.

Charge 2 – 1 year and 4 months’ imprisonment with 8 months consecutive and 8 months concurrent to charge 1; and

I exercise my powers under section 30 (1)(a) of the Theft Ordinance and section 73(1) and (3)(a) of the Criminal Procedure Ordinance and order payment of $1,000 to Ms Nguyen being compensation for the loss of her money, payment to be made from the monies seized on apprehension.

Charge 3 – 1 year and 4 months’ imprisonment with 4 months consecutive and 12 months concurrent to charges 1 & 2.

The total sentence to be served by you is 2 years and 4 months’ imprisonment.

Disposal of exhibits

26.  The prosecution submit a written application for disposal of exhibits pursuant to section 102 of the Criminal Procedure Ordinance and section 30 of the Theft Ordinance, including that the property found on the defendant belonging to Ms Yuliani, Ms Nguyen and Ms Indatatik be returned to the owners. 

27.  The police found on the defendant $25,198, some foreign currency and shopping coupons.  The court having made orders of compensation in the sum of $100 to Ms Yuliani and $1,000 to Ms Nguyen leaves a balance of $24,098.

28.  Agreement has been reached between the prosecution and the defence as to disposal of the $24,098, the foreign currency and the shopping coupons: $14,098, the foreign currency and the shopping coupons be forfeited and $10,000 be returned to the defendant. 

29.  I am satisfied on the evidence placed before the court that it appears an offence has been committed in respect of the $14,098, the foreign currency and the shopping coupons and order forfeiture pursuant to section 102 (1)(b) and (2)(b)(ii). 

30.  I make an order in terms of the written application.