HKSAR v. WONG KAI CHUN

DCCC556/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 556 OF 2012

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Reasons for Sentence

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1.  In this case the defendant, Wong Kai-chun, faced one count of theft, contrary to section 9 of the Theft Ordinance, Cap. 210.

Facts of the case

2.  This is what is commonly referred to as a pickpocketing offence.  On 28 May 2012 at about 1.45 pm the defendant was standing outside a shop at Kai Fat Path, Tuen Mun, behind some customers.  She inserted her right hand into one of the customers’ handbag, took out a wallet and immediately used a jacket to cover her hand and the wallet.  When the victim noticed that the defendant’s wallet was similar to hers, she then found that the zipper of her handbag was opened and her own wallet was missing.  Unbeknown to her, action was being observed by an off-duty police officer.  She was caught red-handed.

3.  The wallet contained $1,100 cash. 

Sentencing authorities

4.  Cases of this kind have been rampant in Hong Kong.  This is not surprising given that Hong Kong is such a crowded area.  Offences of this kind have been considered by the Court of Appeal and there is very clear sentencing guideline in the form of the appeal of Ngo Van Huy, CACC107/2004.  The relevant guideline was set out in the judgment paragraph 9:

“In our view, the following guidelines and principles for this type of offence should be made clear:

(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 to much, the significant degree of inconvenience, the relative case with which it can be affected 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 to 15 months after trial is therefore appropriate for a first time offender. This is an immediate custodial sentence, not a suspended one.”

5.  In addition, the Court of Appeal went on to point out examples of aggravating factors which would affect the sentence.  They were:

(i) 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;

(ii) Where the offence is committed in a place where 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;

(iii) If the offence was committed in conjunction with another or where the defendant was part of an organized and professional ring of thieves, a substantial increase in sentence may be called for;

(iv) Where the defendant was a repeated offender or a persistent one.

6.  In this case the defendant is a female aged 58 years old, she was brought to court 19 times in respect of 27 charges, 20 charges of which were related to dishonesty and 8 of them were pickpockets. Her last conviction was on 19 August 2010 where for two counts of theft, she was sentenced to a total 18 months’ imprisonment.  She was released on 26 October last year. 

7.  According to the Admitted Facts, the location where the pickpocketing occurred was a crowded place and there were eight to nine people shopping outside the shop. 

Sentencing

8.  I do not see in this case any justification at all to depart from the usual starting point of 15 months.  In addition, the aggravating factors also dictate that I should increase the sentence.  I should stress that nothing in the defence counsel’s submission contained any substance which might justify my departure from the usual sentence. 

9.  Accordingly, for the fact that the place was a crowded place, I would increase the sentence by 4 months.  And the fact that the defendant was a repeated and persistent offender, I would increase the sentence by another 6 months.  In all, the total sentence should be 25 months.

10.  I turn to consider whether there are any mitigating factors which could justify reduction of sentence.  The prosecution has furnished an antecedent statement setting out the basic features of her life, and the defence lawyer has also furnished some information about her conditions.

11.  The defendant was divorced and was estranged from her four children; all of them are adults by now.  She lives in Po Tin Estate alone and apparently she is suffering from a number of illnesses including depression, heart disease, arthritis and stomach-ache in which she requires long-term medication.  None of these are valid mitigating factors. 

12.  The only valid mitigating factor is the fact that she pleaded guilty.  And according to the usual practice, the defendant is entitled to one-third discount from the sentence I would mete out.  Accordingly, I would reduce the 25 months’ imprisonment by one-third which is roughly about 8 months.   Accordingly, the defendant is to serve a term of imprisonment for 17 months. 

13.  I do notice that the one-third should be 8.333. However, this has been taken into account when I decided to increase the sentence in respect of her previous and other aggravating factors.  I do not see any particular reason which would justify any further exercise of clemency and I make a sentence order of 17 months accordingly.