HKSAR v. CAI NANCUN AND OTHERS

DCCC 35/2025

[2025] HKDC 617

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 35 OF 2025

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REASONS FOR SENTENCE

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Background

1.  D1, D2 and D3 they all plead guilty to Charge 1 that they committed the crime of theft, contrary to section 9 of the Theft Ordinance, Cap 210; that on 14 April 2024, at Nam Shing Street near Wai Sin Street, Tai Po, New Territories, in Hong Kong, they stole one wallet containing cash of $1,300 Hong Kong currency, 5 credit cards, some receipts and miscellaneous items, property belonging to PW1[1].

2.  D1 and D3 also plead guilty to Charge 2 that they committed the same charge that on 30 April 2024, outside No 45 Tsing Yuen Street, Tai Po, New Territories, in Hong Kong, they stole one wallet containing supermarket cash vouchers valued at a total sum of $2,000 Hong Kong currency, 2 ATM cards and 5 credit cards, property belonging to PW2[2].

3.  All the Defendants admit the content of the Re-Amended Summary of Facts to be true and correct.  They admit, inter alia, that:

Offence 1

(a)  D1, D2 and D3 are two-way permit holders. According to the Travel Index Check records, D1 to D3 arrived Hong Kong via Lo Wu Boundary Control Point on 8 April 2024.

(b)  At around 12:15 pm, PW1 who was at the age of 65 at the material time was walking along Nam Shing Street near Wai Shin Street, Tai Po when she saw 2 males walking very close to her. After the males walked past PW1, PW1 found her rucksack unzipped and her wallet which contained the cash and the credit cards involved in Charge 1 were missing. The males then turned into Wai Shin Street and turned right again.

(c)  CCTV footages depicted two males (later believed to be D1 and D3)  walking behind PW1 at the material time. D1 was holding an umbrella. A man (later believed to be D2)  stood opposite the road facing D1 and D3 and spoke on the phone. After D1 and D3 walked past PW1, D3 took things out of a wallet.

(d)  D1 to D3 departed Hong Kong via Lok Ma Chau Boundary Control Point on 15 April 2024.

Offence 2

(e)  D1 to D3 arrived Hong Kong via Lo Wu Boundary Control Point on 30 April 2024.

(f)  At around 11:19 am on 30 April 2024, PW2, who was aged 61 at the time, was at Plover Cove Garden, Tai Po. She checked that her wallet was in her rucksack. PW2’s wallet contained supermarket vouchers worth HK$2,000, 2 ATM cards and 5 credit cards, when she back home, she found her wallet was missing.

(g)  CCTV footage depicted D3 followed PW2 from close behind and taking something from PW2’s rucksack at the material time. D1 followed D3 from close behind and used an umbrella to hide D3’s hands.

(h)  At 3:42 pm on 2 May 2024, D1 was arrested for the charges “Theft”. Under caution, D1 remained silent. Upon search, police seized the clothing, rucksack and shoes worn by D1 during Offence 2 and an umbrella.

(i)  Two cautioned VRIs were conducted with D1 on 2 May 2024 and 3 May 2024 in which he stated, inter alia, the following:

i. He called D3 after arriving in Hong Kong. They met in Tai Po and went to the place depicted in the CCTV footage for Offence 2;

ii. He knew that D3 opened the woman’s rucksack for the purpose of stealing;

iii. He held an umbrella behind D3 and helped D3 to block people;

iv. D3 was responsible for stealing and he was acting as cover next to D3;

v. The seized rucksack and shoes belonged to him; and

vi. He was depicted in the CCTV footage for Offence 2.

(j)  At 3:05 pm on 4 May 2024, D2 was arrested for the charges “Theft”. Under caution, D2 remained silent. Upon search, police seized the shirt worn by D2 during Offence 1.

(k)  A cautioned VRI was conducted with D2 on the same day in which he stated, inter alia, that the man depicted in CCTV footages for Offence 1 was him.

(l)  At 3:30 pm on 6 May 2024, D3 was arrested for the act of “Pickpocketing”. Under caution, D3 remained silent. Upon search, police seized the shirt worn by D3 during Offence 1 and the sling bag carried by D3 during Offences 1 and 2.

4.  In fact, both Charge 1 and Charge 2 are offences of “Pickpocketing”. All the 3 Defendants have a clear record and are two-way permit holders.

The Starting Point

5.  According to the relevant section, the maximum penalty of the charge is a 10 years’ imprisonment.

6.  In HKSAR v Vy Van Kien and Another [1991] 1 HKLRD 433, the Court of Appeal laid down sentencing guideline for pickpocketing that for a first offender, the sentence after trial is a 12 to 15 months’ imprisonment (See also HKSAR v Ngo Van Huy [2005] 2 HKLRD 1).

7.  Accordingly, the starting point for Charge 1 and 2 is one of 15 months’ imprisonment.

Mitigation, Aggravation and the Total Sentence

8.  All the Defendants have a clear record.  They plead guilty in a timely manner, they will have 1/3 discount on sentence.

9.  Mr James William Labboon Li acts for D1, he submits D1 is remorseful and the stolen credit cards have never been used.

10.  Mr Yip Kin Cheong acts for D2, he submits D2 is remorseful and would ask leniency from the Court.

11.  Mr Li Chiu Wah, Joseph, acts for D3, he submits D3 is remorseful and will not re-offend. 

12.  D1 to D3 also submit mitigation letters, which all mentioned they were remorseful and asked for leniency.  All in all, other than their timely plea, all the Defendants have no other mitigating factor.

13.  In Charge 1, the Court identifies the following aggregating factors:

(a)  There were international elements that all the Defendants came from China; they were 2 ways permit holders;

(b)  The incident happened at around 12:15 pm, at an open area where the public is at particular risk;

(c)  The 3 Defendants acted in concert, it was a planned action and the modus operandi was quite professional;

(d)  A tool, ie an umbrella, was used during the action.

14.  In HKSAR v Tan Hong Sheng [2005] HKCU 1176, the Court of Appeal faces a similar case that:

“12. Now I come to sentence. In his Reasons for Sentence, the judge took into account the guidelines set by this Court regarding sentence on pickpocketing. In the normal circumstances, a starting point of 12 to 15 months would be appropriate, which sentence should be increased if there are elements of aggravation.

13. The judge took into account that the place where the offence was committed is a well-known crowded area in which the public is at particular risk, that the offence was carried out by the three defendants jointly, that an international dimension was involved in that the three defendants had come to Hong Kong from the Mainland and committed the offence on the second day of their stay here, and that the offence was organised, well-planned and quite professional.

14. Ms Evena Chan, for the respondent, has reminded me of the case of HKSAR v Ngo Van Huy [2005] 2 HKRD 1, the sentencing guideline case on pickpocketing. Considering that judgment carefully, I find that there is nothing wrong in principle about the sentence of 30 months’ imprisonment passed by the judge on the applicant. All the aggravating features of the offence, as mentioned by the judge, are valid. The sentence is in my view, not manifestly excessive.”

Charge 1

15.  For Charge 1, for all the Defendants, the starting point is one of 15 months’ imprisonment.  I will add 3 months’ imprisonment for the international element; 3 months for the 3 Defendants acted in concert and 3 months for a tool was used.  As far as I can understand, there would be a lot of people on the location when Charge 1 happened, but the area was not a particular crowded one, so I will add 3 months’ on this aspect.  The total aggravation is one of the 12 months’ imprisonment and the overall sentence for Charge 1 is one of 27 months’ imprisonment.

16.  All the Defendants will have 1/3 discount.  So for Charge 1, each of them are sentenced to a 18 months’ imprisonment. 

Charge 2

17.  For Charge 2, after D1 and D3 completed Charge 1, they left Hong Kong on 15 April 2024 and re-entered Hong Kong on 30 April 2024, and they committed Charge 2 with the same method as Charge 1 again, which is another aggrieving factor other than those I have mentioned, I will add 3 months’ imprisonment in this aspect.

18.  D1 and D3’s sentence in Charge 2 is a 30 months’ imprisonment, when all the aggravating factors are considered[3]. After 1/3 discount, it becomes a 20 months’ imprisonment.

19.  The Court then consider the totality principle.  After a careful consideration, I find 10 months’ imprisonment in Charge 2 should be run concurrently with Charge 1, and the rest to be run consecutively.

20.  After all the consideration:

a. For D1, he is sentenced 18 months’ imprisonment in Charge 1, 20 months’ imprisonment in Charge 2, that 10 months’ in Charge 2 to be run concurrently with Charge 1, the total sentence is one of 28 months’ imprisonment;

b. For D2, he is sentenced 18 months’ imprisonment in Charge 1;

c. For D3, he is sentenced 18 months’ imprisonment in Charge 1, 20 months’ imprisonment in Charge 2, that 10 months’ in Charge 2 should be run concurrently with Charge 1, the total sentence is one of 28 months’ imprisonment.

Conclusion

21.  The total sentence for D1 is one of 28 months’ imprisonment, that for D2 is 18 months and that for D3 is 28 months.