HKSAR v. TANG YIU WING

DCCC 30/2021

[2021] HKDC 370

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 30 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.  The particulars of offence aver that the defendant on 18 July 2020 outside Shop No 4, Ground Floor, Hing Shing Building, Nos 7-9 Chik Fai Street, Sha Tin, New Territories, in Hong Kong, stole one iPhone with one phone case and one Octopus card, property belonging to Wong So Chun.

3.  In gist, this is a case of theft by pickpocketing.  According to the summary of facts which was agreed by the defendant, at the material time, the victim was buying food from the shop and used her Octopus card (hereinafter called “the Octopus Card”) for payment.

4.  Then, she put the Octopus Card (which had a credit of HK$205.40) into the phone case (hereinafter called “the Phone Case”) of her iPhone (which was worth HK$3,500) (hereinafter called “the iPhone”) and put the iPhone into the external pocket of her blue bag (hereinafter called “the Bag”).

5.  At about the same time, Mr Law was shopping with his wife and saw the defendant staring at people’s bags near the junction of Chik Fai Street and Mei Tin Road.  Feeling suspicious, he kept the defendant under observation and called the police.

6.  Shortly afterwards, the victim went to another shop on Chik Fai Street to buy food.  There and then, she found that the iPhone, together with the Phone Case and the Octopus Card were missing.  She reported to the police and PC 10358 arrived to provide assistance.

7.  At around 11:40 am, PC 22416 intercepted the defendant outside No 46 Chik Wan Street.  Upon search, a white “Samsung” mobile phone and the iPhone were found in the defendant’s cross-body bag.  During initial inquiry, the defendant said that the “Samsung” mobile phone belonged to him.

8.  At this juncture, the iPhone rang.  PC 22416 picked up the call and learned that the victim was the owner of the iPhone.  Thus, he arrested the defendant for the offence of theft.

9.  Under caution at the scene, the defendant admitted that he stole the iPhone out of greed.  He also admitted that he had thrown away the Phone Case but kept the Octopus Card with him.  Upon further search, the Octopus Card was found in the defendant’s cross-body bag.

10.  In the subsequent interview, the defendant admitted under caution that:-

(a)  Out of greed, he stole the iPhone and the Octopus Card from a female near the junction of Chik Fai Street and Mei Tin Road.

(b)  He was walking along Chik Fai Street at the material time and planning to buy meat for cooking at home. He saw a female putting her mobile phone into the external pocket of her blue bag, without zipping up the pocket. Then he held his umbrella slightly up with his left hand to cover up his act, and stole the iPhone (together with the Phone Case and the Octopus Card) with his right hand.

(c)  He intended to sell the iPhone in Sham Shui Po and make purchases for himself using the Octopus Card.

Criminal records and background of the defendant

11.  The defendant is now aged 61.  He immigrated to Hong Kong in 1979 when he was aged 20.  He studied up to Junior Secondary level in China.  He had an earlier marriage out of which he had two daughters.  After divorce, he maintained no contact with his ex-wife and her daughters.

12.  He subsequently re-married in Hong Kong with a PRC citizen aged 50 who habitually resides in Hong Kong with the defendant.  His wife is dependent on him.  After the COVID-19 pandemic, his wife has been staying in China.  There are no children born out of his second marriage.

13.  Before committing the present offence, he was a casual delivery worker earning about HK$12,000.00 to HK$13,000.00 per month.  He has no serious illness or disabilities.

14.  He has 28 previous convictions, 18 of which being for theft.  Out of the 18 theft criminal records, 7 of which being for pickpocketing.  He was last released from prison in June 2019.

Mitigation

15.  In mitigation, Mr Lam emphasized the fact that the defendant had pleaded guilty to the offence at the earliest opportunity and is entitled to the full one-third discount.

16.  Mr Lam further stated that the defendant admitted that his appalling criminal record is an aggravating factor, and as seen from the criminal record of the defendant, the defendant spent a substantial part of his life in prison.  However, the defendant would ask the court to give him a last chance and undertakes to the court that he would not re-offend again.

17.  Mr Lam also submitted that the defendant co-operated fully with the police and admitted the offence of the subject charge in his cautioned statement.  He is now extremely remorseful.  As admitted in his cautioned statement, he committed the offence out of momentary greed.  The value of the stolen property is insubstantial, being an i-phone and an Octopus card, which have been recovered and would be returned to the victim, who therefore would suffer no loss.

18.  Mr Lam pointed out that this is a case of theft by pickpocketing.  The sentencing guidelines for pickpocketing were laid down by the Court of Appeal in the leading authority of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.

19.  It was stated in paragraphs 9 to 11 of the case as follows:-

“9. In our view, the following guidelines and principles for this type of offence should now be made clear (and it is to be noted they differ somewhat from the way the Judge approached the matter):-

(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 too 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, 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 (such as a razor-blade or knife used to cut open, say a handbag or, worse still, intended to be used on the victim):- see Vy Van Kien.

(b)  Where the offence is committed in a place in which the public is at particular risk, such as crowded places like the MTR or the 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. Where he is part of an organized and professional ring of thieves a substantial increase in sentence may be called for : see HKSAR v Rang Zhi Tai and Another, unreported, HCMA 7/1999, 25 March 1999, Court of First Instance; HKSAR v Ho Minh Cong, unreported, HCMA 547/1999, 23 September 1999, Court of First Instance. For example, where professional pickpockets from overseas (whether individually or in a group) come to Hong Kong to carry out this type of activity (no doubt tempting owing to the number of crowded places here), an increased sentence can be imposed : - see R v Saldana Alca Jose and Another, unreported, CACC 655/1996, 19 August 1997. In giving the judgment of the Court of Appeal, Patrick Chan J made the following remarks about organized pickpocketing:

“We take this opportunity to indicate that in our view, because of their seriousness, organized crimes of this nature including group pickpocketing, even without international ramifications, might in future properly attract a starting point of at least 2½ years’ imprisonment”.

(d)  Where the accused is a repeat offender or, worse still, a persistent one : - see R v Chiang Pok Wing, unreported, HCMA 589/1996, 25 July 1996, Court of First Instance; HKSAR v Huynh Van Dung, unreported, HCMA 270/2001, 21 June 2001, Court of First Instance.

(5)  We should just elaborate on the aspect of an accused’s previous convictions as being an aggravating feature. It used to be at one stage sentencing policy that a person would not receive an increase in sentence by reason only of a poor record of like offences. The passage of the judgment of Penlington JA in Vy Van Kien at 427 C-D provides an example of this. Rather, the accused would simply not receive any discount from which a person of clear record might benefit. This has now changed. Sentencing policy in Hong Kong (and, it should be noted, elsewhere in the world including the United Kingdom and Australia) recognizes that where there are repeat offences of the same kind, a person’s previous record is likely to be an aggravating feature where this demonstrates in particular either the need to impose a deterrent sentence on the particular accused (the previous ones not having apparently had this effect) or the need to protect society from criminals like him : - see the judgment of Stuart-Moore V-P in HKSAR v Chan Pui-chi [1998] 2 HKLRD 830, at 833-4. Where a poor previous record for similar offences exists, a court will be justified in imposing a substantially higher sentence : - see Chan Pui-chi at 833 F-I, referring to R v Billam & Others (1986) 82 Cr App R 347.

(6)  Where, such as in the present case, an application is made to enhance the sentence under section 27 of OSCO by reason of the increased prevalence of the crime of theft by pickpocketing, it will, where the prevalence is proved, be appropriate for the court to enhance sentence. As we have observed above, this particular form of theft can properly be regarded as a serious offence and as a matter of public policy, a meaningful and deterrent sentence should be imposed. Where it has become increasingly prevalent, an enhancement of the sentence is therefore entirely appropriate. In this particular case, the figures we have seen show an alarming increase. The Judge ordered an enhancement of 25% (no doubt as this was the figure suggested by Government Counsel who appeared before him), but the figures available to us indicate that a greater increase is justified. In our view, enhancing the sentence by ⅓ would be appropriate.

10. In applying these guidelines and principles to the present case, and accepting there has admittedly been a certain amount of double counting in the sentence imposed by the Judge, we are of the view that the correct sentence for the Appellant is 24 months’ imprisonment : -

(1)  The starting point is 15 months. The circumstances of the theft in the present case puts it at the higher end of the range.

(2)  From that starting point there must, we feel, be a substantial increase on account of the Appellant’s appalling previous record for theft. We have already in paragraph 3 above set out the more notable features of this. The need for a deterrent sentence for this particular person as well as the protection of society dictates that, notwithstanding the fact that what was involved in this case was the theft of a mobile telephone worth $3,680, there should be added another 9 months.

(3)  There also exists the aggravating feature that the offence was committed in a crowded area. The junction of Argyle Street and Sai Yeung Choi Street in Mongkok is a very crowded part of Hong Kong, particularly at that time of the evening. We would therefore add another 3 months to the sentence.

(4)  So far, the sentence for the Appellant comes to 27 months. With ⅓ discount for the plea of guilty, this becomes 18 months. It is at this stage (that is, after a discount has been given on account of the plea) that any enhancement under OSCO should be made : - see HKSAR v Tam Wai Pio [1998] 4 HKC 291, at 298. In other words, if any enhancement is to be made, it should be made at the final stage of the assessment.

(5)  In the present case, as we have stated above, we believe the correct figure for enhancement under OSCO is ⅓. This brings the overall sentence for the Appellant to 24 months.

11. For the above reasons, we allow the appeal and reduce the sentence of the Appellant from 30 months to one of 24 months.”

20.  Mr Lam also relied on the case of HKSAR v Wong Kang Sun [2014] 1 HKLRD 622 (Date of Judgment: 6/12/2013).  He submitted that in the above case, the defendant was one month short of 60 years of age at the time of committing the pickpocketing offence.  He had 58 previous convictions, 24 of which being for theft and 6 of which being for pickpocketing (see paragraph 3 of the Judgment in that case).

21.  On appeal against sentence, the court allowed the appeal and reduced the sentence from 18 months’ imprisonment to 16 months’ imprisonment.

Sentencing considerations

22.  The facts of this case are straightforward.  The defendant was caught red-handed picking the pocket of the victim.  The defendant very wisely fully co-operated with the police and admitted the offence.

23.  At the material time, the iPhone (worth HK$3,500) together with the Phone Case and the Octopus Card (which had a credit of HK$205.40) were stolen by the defendant.

24.  The defendant has an appalling criminal record, and he has 28 previous convictions, 18 of which being for theft.  Out of the 18 theft criminal records, 7 of which being for pickpocketing, and he was last released from prison in June 2019 for his 16 months’ imprisonment of similar offence of the present case.

25.  The defendant is clearly a recidivist and a repeat offender, and the court can take this into account when considering an appropriate starting point for an offence, increasing that starting point.

26.  As rightly pointed out by Mr Lam in mitigation, the initial starting point for an offence of this nature can be derived from the authority of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  The Court of Appeal was of the view that the usual starting point for a single offender is between 12 and 15 months.

27.  I also refer myself to the authority of HKSAR v Chan Pui Chi [1999] 2 HKLRD 830.  Clearly in this case, sentences the defendant has received in the past have proved to be of no deterrent to him.

28.  In mitigation, Mr Lam has submitted an authority for the court’s consideration, HKSAR v Wong Kang Sun CACC265/2013.  In that case, the offence was found by the Judge to be unsophisticated and opportunistic, and the defendant in that case was found that he would not have known what was in the outer pocket of the backpack and the value of the items stolen was minimal, therefore a starting point at the top of the 12 to 15 months range was not appropriate before a consideration of any aggravating features.

29.  In the present case, the defendant was a lone operator, and he targeted the victim and aimed at her phone.  My view is that the mobile phone is a valuable property to its owner.  Apart from the value of the phone itself, it also contained a lot of important and confidential information.  The loss of the phone will cause substantial inconvenience to its owner, and heavier sentence should be attracted.

30.  Having considered the facts here, I consider a 15-month starting point as appropriate.  I would increase that starting point by 9 months to reflect the defendant’s appalling criminal record and the fact that he re-offended 1 year after his release from prison for a similar offence.

31.  In court, I had clarified with both sides, Mr Lam agreed on behalf of the defendant that the junction of Chik Fai Street and Mei Tin Road is a market area, and that Shop No 4 is a shop selling frozen meat.

32.  Mr Lam also provided a photo of the shop (marked as “MFI-1”) and submitted that the degree of crowdedness of the street at the material time was similar to those degree that was being shown in the photo.

33.  My view is that since Chik Fai Street and Mei Tin Road is a market area, the shops located there will be busy at the time of the offence took place ie around 11:30 am, because that was the usual time for the people like the victim, the defendant and Mr Lam to go to the market for shopping.

34.  I would therefore add, for the second aggravating factor, that being the defendant’s choice of venue to commit this offence, as he targeted the victim in a busy shop.  Therefore, a 3-month enhancement will be added, making the starting point a total of 27 months.

35.  The defendant has pleaded guilty and is therefore entitled to a discount of one-third.  There being no further valid mitigating factors justifying further reduction in sentence, the defendant is therefore sentenced to 18 months’ imprisonment for this offence.