HKSAR v. AU KIN WAH (also known as AU WA AND AU KIN-WA)

DCCC 346/2021

[2021] HKDC 923

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 346 OF 2021

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a single charge of theft. The particulars are that on 19 February 2021, outside a stall in Pei Ho Street Market in Sham Shui Po, the defendant stole one mobile phone with one phone case, property belonging to a named person.

2.  The Summary of Facts which proves the charge is agreed by the defendant, and that summary shows that on the day stated on the indictment, that is 19 February 2021, a police officer was patrolling in Pei Ho Street Market in Sham Shui Po.  He saw the defendant walk close to the first prosecution witness, the victim, outside a stall of the market.  The defendant was seen to take an object from the right trousers pocket of the victim, and put the object into a recycle bag held by the defendant.

3.  The defendant was intercepted by the police shortly after, searched, and a mobile phone was recovered.  The defendant was arrested for theft at the scene.  Under caution, he said that he stole the mobile phone with the phone case from the victim for his own use out of momentary greed.

4.  The defendant’s antecedents show that he is now aged 64, was born in Guangzhou and arrived in Hong Kong in 1960. 

5.  The defendant has a large number of previous convictions shown on his criminal record, a total of 35 separate appearances in court.  A large number of those relate to theft described as pickpocketing or thefts with sentences which would indicate that they are themselves pickpocketing offences.  There are offences of theft in almost every year since the 1980s.

6.  Turning to the last decade, the defendant has been convicted of theft offences in 2012, 13, 15, 16, 18 and 2020.  Sentences have ranged between 12 months’ imprisonment and 18 months’ imprisonment. The defendant was sentenced in 2020, in April of that year to 14 months for pickpocketing together with an offence of possession of dangerous drugs.  It would appear from the antecedent statement the defendant was discharged from correctional services custody on 27 October 2020.  He has been at large since that date, committing this offence on 19 February 2021, some four months later.

7.  In respect of mitigation, I am told the defendant has in fact been detained since April of 2021.  It is submitted the defendant co-operated with the police, admitted his guilt under caution, indicated an intention to plead guilty at the earliest opportunity.  It is said that the mode of commission is not sophisticated.  The defendant acted alone. No tools were used and the stolen property has been recovered.

8.  Defence make reference to the guideline for sentencing and the defendant indicates he wishes to ask for a lenient sentence.  As far as that guideline is concerned, the guideline for thefts of this nature, which are described as pickpocket offences, can be found in the case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1. 

9.  In that case, the court set out a number of guidelines, firstly, which said that theft by pickpocketing can be regarded as the type of offence that society severely and rightly condemns.  Although the value of the items stolen may not amount to much, the significant degree of inconvenience and the adverse reputation that this type of crime justifies a heavy penalty.  Guideline sentences of 12 to 15 months after trial is appropriate even for a first-time offender.  This is an immediate custodial sentence, not one to be suspended.  The court must take into account the existence of any aggravating features of the offence.  The aggravating features which are present in this offence would be that the offence is committed in a place in which the public is at particular risk, such as crowded place like MTR, racecourse, crowded shopping areas where pedestrian traffic is heavy. 

10.  We can see this offence was committed at the Pei Ho Street Market in Sham Shui Po.  In this case, also the defendant is a repeat offender.  That is considered to be an aggravating factor in respect of this particular offence.

11.  I would indicate at this stage that the original starting point for sentence is one of 15 months’ imprisonment.  The circumstances of theft in this case put it at the higher end of range.  From that starting point, there must be an increase for the defendant’s previous record for theft.  I would indicate that for that poor record from the defendant should be added another 9 months.  There also exists the aggravating feature that the offence was committed in a crowded area.  I would therefore add another 3 months to the sentence for that. 

12.  This leads to an overall starting point for sentence of 27 months.  The defendant is entitled to one-third discount for plea of guilty.  Having taken that into calculation, the sentence becomes one of 18 months’ imprisonment.  That is the final sentence of the court of 18 months’ imprisonment.