HKSAR v. AU KIN WAH

DCCC 698/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 698 OF 2013

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to one charge of attempted theft, contrary to section 9 of the Theft Ordinance and section 159G of the Crimes Ordinance. This attempted theft is commonly categorised as attempted pickpocketing.

2.  On 12 June 2013, which was a public holiday and race day, a betting patron, a lady aged 39, went to the betting centre at the Hong Kong Jockey Club at No. 45 Argyle Street, Mong Kok, Kowloon to collect her winnings on her bet.  It was about 5.34 pm.  After collecting her winnings, she carried her handbag on her shoulder which was not zipped up. 

3.  As she was leaving the betting centre, she suddenly felt some weight on her handbag.  She immediately turned around and found you standing at her left-hand side and inserting your right hand into her handbag covered by a newspaper.

4.  Being discovered by her, you immediately fled.  However, quite fortunately, at the material time, there were two plainclothes officers patrolling at that betting centre.  As they found you were acting suspiciously they had you under observation.  One of the police officers saw you trying to pull out the mobile phone from the lady’s handbag. He, therefore intercepted you and arrested you for attempted theft.

5.  Under caution, you remained silent.

6.  The lady’s mobile phone was not taken from her handbag. It was still in her handbag and she did not suffer any loss.

7.  Defendant, you are 56 years of age and have 41 previous convictions as a result of 30 court appearances.  27 of those convictions are for theft or attempted theft and among those theft convictions, 16 are for pickpocketing.  On the criminal record before me, the last conviction in February 2012 does not state that it is pickpocketing.  However, having looked at the case and it having been confirmed by you, those last three convictions were also for pickpocketing or attempted pickpocketing.

8.  Your solicitor, Mr Augustine Tong, has mitigated fully and thoroughly on your behalf.  He explains that the reason why you committed this offence was because you had been out of a job for a few days and, out of greed and being in need of money, you committed this offence. 

9.  He quite properly accepts that in view of your previous conviction record that the court may well enhance your sentence.  Another aspect of enhancement is as a result of the crowded area in public place.

10.  Your greatest and strongest mitigating factor is, as Mr Tong has said, your plea of guilty.

11.  Quite correctly, defendant, you have been before the court on numerous occasions.  Your first appearance was in 1977, when you were an 18-year-old.  That first offence was also for pickpocketing.  Since then, that is, for the next 30-odd years, you have been in and out of prison continuously.

12.  You were released in April 2013 from your last sentence. Within two months of your release, you committed this present similar offence, again.

13.  You are undoubtedly a professional pickpocketer and the sentences passed upon you appear to have had no effect whatsoever.

14.  You are well familiar with the sentencing guidelines, I am sure, as a result of your previous sentences imposed upon you.  The sentencing guidelines are clearly laid down in the case of HKSAR v Ngo Van Huy, CACC 107/2004.  I am guided in my sentence imposed upon you by that case.

15.  Defendant, the starting point for a pickpocketing offence after trial for a first-time offender is a sentence of between 12 and 15 months imprisonment.

16.  You are not a first-time offender.  I, therefore, take a starting point of 15 months’ imprisonment.

17.  Account must be taken of the existence of any aggravating or particular mitigating factors. 

18.  The only mitigating factor in your case is your plea of guilty. 

19.  There are, as Mr Tong, rightly pointed out, two aggravating factors. 

20.  One of those aggravating factors is that the offence was committed in a public and crowded place; that is, the Hong Kong Jockey Club betting centre on a race day. 

21.  On that basis, your sentence shall be enhanced by 3 months.

22.  The other aggravating factor is the fact that you are a repeat offender and a persistent one.

23.  In those circumstances, the sentence shall be further enhanced by 9 months’ imprisonment.

24.  Therefore, the total term of imprisonment had I convicted after trial would have been 27 months’ imprisonment.

25.  You have pleaded guilty and, therefore, the one-third discount for your plea is incorporated and, in those circumstances, defendant, you shall be sentenced to 18 months’ imprisonment.