HKSAR v. FUNG YIU FAI

DCCC 257/2021

[2021] HKDC 744

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 257 OF 2021

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Theft". This is a pickpocketing case which took place on an escalator leading to a footbridge in Sham Shui Po on a weekday afternoon.

Summary of Facts

2.  About 2:00 p.m. on 14 January 2021, whilst on patrol in Sham Shui Po, PC 26584 (PW2) noticed the defendant gazing at the belongings of various pedestrians and sometimes walking closely behind them.  PW2 kept observing him.

3.  About 10 minutes later, the defendant was standing behind Madam Kwok (PW1) on an escalator leading to West Kowloon Centre.  He used his right hand to reach into PW1's shoulder bag, which was hanging on her right shoulder, and took a mobile phone from the bag.  PW2 was standing on the escalator behind them and witnessed the entire incident.

4.  PW2 went forward to intercept the defendant.  At the same time, PW1 felt movement of her shoulder bag and turned around.  She saw the defendant holding a mobile phone in his hand.  She immediately shouted "Theft" and snatched her mobile phone from the defendant's hand.

5.  PW2 arrested the defendant.  Under caution, he claimed that he had no money for food, so he stole the phone from the woman's bag intending to sell it.

6.  In his video recorded interview, the defendant admitted that he saw a woman with her bag open.  Seeing there was a mobile phone in the bag, he stole the phone intending to sell it.

Mitigation & Sentence

7.  The defendant is 49 and has 20 conviction records, which included 16 "Theft" offences (3 of which are specified as "pickpocketing"). In late February 2021, he was sentenced to 12 months' imprisonment for "pickpocketing" in WKCC 309/2021.

8.  The defendant informed me that he has no work. He relies on social welfare (which includes a disability allowance) in the sum of $4,000 per month. He is married with a son (aged 14). He said he had received 3 surgeries on his right leg and his mobility is hindered. He admitted that he is a heroin addict. The contents of his mitigation letter are duly noted.

9.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. The defendant has only himself to blame. He knows all too well that the root of his problems is his drug addiction.

10.  The nature of this case appears to be pickpocketing simpliciter; however, the defendant being a persistent offender constitutes an aggravating feature. The Summary of Facts does not mention if the offence location was a crowded place. I shall give the defendant the benefit of doubt, though one can reasonably imagine how crowded an escalator leading to a footbridge in Sham Shui Po on a weekday afternoon would be. I would not treat the offence location as a crowded public place.

11.  I have borne in mind the relevant sentencing authorities[1]. Since PW1 suffered no property loss and the defendant's stealing act was an unsophisticated one, I adopt a starting point of 12 months' imprisonment. I will enhance it by 9 months for the defendant's long history of "Theft" convictions. Thus, the starting point becomes 21 months. With the timely guilty plea, the sentence is reduced to 14 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 14 months' imprisonment.

12.  The defendant is currently serving a 12-month sentence for "pickpocketing" in WKCC 309/2021. There is very little I can do in terms of totality. I order 2 months in the present case to run concurrent with the sentence in WKCC 309/2021.

13.  The defendant's criminal record is an appalling one. The court can only do so much in deterring a repeated offender by way of a heavy penalty. Whilst the sentence must carry a deterrent effect, it cannot go out of proportion. To live a law-abiding life with dignity or to continue being a criminal is a matter entirely for him.