HKSAR v. CHENG WAI LEUNG AND ANOTHER

DCCC789/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 789 OF 2012

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Reasons for Sentence

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1.  1st defendant and 2nd defendant, you have both pleaded guilty to one charge of theft by pickpocketing, contrary to section 9 of the Theft Ordinance.

2.  D2, you have pleaded guilty to another two charges of theft, contrary to section 9 of the Theft Ordinance.  It is claimed by you D2, that they were thefts by finding.  For reasons which I will give you later, I reject your claim that this was a theft by finding in either case and I have drawn the irresistible inferences that this was theft by pickpocketing.

3.  These three offences were all committed on 10 July 2012 in Mong Kok area and on each occasion a smartphone was stolen. 

4.  On the 1st charge, it was an iPhone; the 2nd charge, a Samsung Galaxy; and the last 3rd charge, also an iPhone. 

5.  At about 7.35 that evening, police were patrolling inside the H&M Shop at Langham Place, Mong Kok.  They saw you two defendants, who are husband and wife, acting furtively and staring at the customers’ handbags.  A police officer saw you both following the victim in Charge 1 who had her handbag hanging on her shoulder.  You both then walked closely behind her and D1, (husband), you used your right hand to pick the iPhone from her handbag and then handed it to your wife, D2.  D2, you then put the phone into your pocket.  Both of you defendants then left the H&M store immediately.

6.  The victim was not aware of the pickpocketing and kept walking.  The police immediately intercepted you both and the victim was also intercepted.  The victim’s iPhone was found in your, D2’s, left pocket.

7.  You were both arrested and cautioned.  D1, you said, “I stole the mobile phone out of greed.”  And D2, you said, “I have kids and I am in need of money, therefore, I stole phones with my husband.” 

8.  Upon a further body search of you, D2, two more mobile phones were found in your pocket.  You were cautioned again, and under caution you claimed that you picked up the two mobile phones in Mong Kok earlier.  You said, “I picked up the two mobile phones in Mong Kok earlier; I was greedy and intended to sell them.” 

9.  In a subsequent video recorded interview, D2, you admitted stealing mobile phones in order to support your kids and that you picked up these phones on Nelson Street in Mong Kok.  Those two mobile phones were the properties stolen from the victims in Charges 2 and 3.

10.  In Charge 2, the lady victim had used her mobile phone when waiting for her friend at the Mong Kok Railway Station at about 6.30 pm.  She then put her phone into her bag she was carrying, about 10 minutes later when she left Mong Kok Railway Station she found her phone missing from her bag.

11.  As per Charge 3, the victim had his phone at about 7 pm when he was shopping in Langham Place.  He placed his phone in his waist bag, later when he was buying drinks in 7-Eleven he found his waist bag opened and his phone was missing. 

12.  I turn to the issue of whether this was picked up (theft by finding) or was stolen by you (pickpocketing), D2.

13.  The victims in Charges 2 and 3 had lost their phones between 6.30 and 7.30.  Soon thereafter you were stopped by the police.  One of the victims was actually in Langham Place where you were actually caught red-handed pickpocketing for the 1st charge.  All three offences took place in the Mong Kok area.  Both victims in Charges 2 and 3 said that they put their phones in their bags and when they looked in their bags, they were gone.

14.  When you were cautioned by the police, you said that you had four children and you stole mobile; in Chinese, there is no plural for phone, but you stole phones to support your kids.  The only meaning could be that you stole mobile phones in the plurals, not one phone, to support your kids.  I wholly reject the claim that you by pure coincidence within the hour before you were arrested had found so fortunately two phones on ground on Nelson Street and stole them. 

15.  Given what I have stated and the proximity in time, the location of the thefts, the fact that the victims themselves said their phones had gone missing from their bags, your admission and the wholly unbelievable evidence that you picked up two phones within an hour on Nelson Street, I reject your claim that this was a case of theft by finding but find that you had pickpocketed these phones from those two victims. 

16.  Moreover, you were caught red-handed pickpocketing in respect of the 1st charge.  That clearly explains your reason for committing offences to steal phones, in the plural. 

17.  Your solicitor, Mr Billy Lau, has given me detailed written submissions which I have taken into account.  I shall not repeat or go through all that he has been mitigated on your behalf.  I have taken into account all that he has to say in considering the most appropriate sentence.

18.  D1, you are aged 50 and married to D2 with four children; they are aged 11, 7, 4 and 1.  You have been brought to court on 21 occasions and of those occasions 32 convictions have been entered against you. Of those convictions, 19 of them are for theft or attempted theft, and among those, 8 are related to pickpocketing.

19.  D2, you have been brought to court on 7 separate occasions and have 9 convictions entered against you.  Four of those related to theft and attempted theft; and one of which was for pickpocketing. 

20.  In summary, I am told that the reason for you committing this offence was because a lady had committed suicide in the tenement building where you and your children were living.  Your children expressed an interest to move out, so you found new premises which were of great expense.  Nobody would lend you money and therefore you turned to committing these offences. 

21.  At the material time, you were both unemployed, on CSSA and received a total between yourselves from CSSA of about $16,000.

22.  You have both regretted your commission of these offences and the biggest victims, you say, are your children who have suffered the most as they are now without you and are separated from each other, either being cared for by their grandparents or have been fostered to homes through the Social Welfare Department.

23.  Your daughter has also written a letter hoping that she can reunite with you soon and knows that what you have done is wrong and that she will not see you for a while. 

24.  You both have been in and out of prison for the last few years.  D1, you were last released from prison in December 2011.  D2, you were released from prison in March 2011.

25.  You both have previous convictions for theft by pickpocketing to which you were sentenced to imprisonment.  Despite previously knowing the consequences of these offences on your young family, you continue to commit offences knowing the consequences thereof.  It is correct you should feel sorry for your children, you are irresponsible parents.  It is sad to see that you have had your 11-year-old daughter write such a gloomy letter to court, you should feel ashamed.

26.  Yet despite you having committed offences for all these years, you continue to have more children. You have four children. You are both unemployed and are reliant on CSSA.  You have bitten off more than you can chew by renting an expensive premises and sending your children to expensive schooling.  You have dug yourselves your own grave. You have to learn to cut your clothes according to one’s cloth.  Your children are suffering as a result as your wrong doings. 

27.  I sincerely hope in the words of your solicitor that your children will learn to become law-abiding citizens and not follow the bad example set by yourselves. 

28.  The guidelines for sentencing pickpocket offences are well set out in the Court of Appeal case of HKSAR v Ngo Van Huy CACC107/2004.  As for offences committed by two or more people, that was also clearly set out as an aggravating feature in HKSAR v Chan Mei Yee, Carman CACC447/2009.

29.  The appropriate starting point to be taken  is that as set out in the case of HKSAR v Chiu Suet Yee, Angel CACC105/2010.

30.  I consider a starting point of 15 months’ imprisonment to be appropriate as the property was that of smartphones. 

31.  On Charge 1, D1, the following is your sentence.  15 months as the starting point for the pickpocketing offence. There are aggravating features which call for a higher sentence.  They are that of your appalling criminal record of which a further 9 months shall be added to 15 months; the fact that you were committing this offence with your wife, that is the commission of the offence with two or more people and I add an additional 3 months for this joint enterprise.  In total that makes a starting point of 27 months. 

32.  D1 you have pleaded guilty to this offence, giving you full credit for your plea, that sentence will be reduced to one of 18 months’ imprisonment to which you shall be so sentenced.

33.  D2 I adopt the same starting point on Charge 1, that is 15 months.  It makes no difference whatsoever that you were not the actual pickpocketer; you acted in conjunction with your husband in pickpocketing and I shall take the same starting point.

34.  Your record is not as appalling as your husband’s, and as stated in HKSAR v Duong Van Dung CACC284/2004, a strict comparison of the number of prior convictions as between cases in assessing the degree of enhancement for a particular offender is unproductive.  In that case the applicant had 7 convictions of theft and in that case the offences warranted a 6 months’ enhancement. 

35.  You had four related to theft of which one was pickpocketing.  I consider 6 months imprisonment to be appropriate as an enhancement because of your previous record.

36.  You committed this offence together with your husband and that warrants a further 3 months’ imprisonment.  That makes a total of 24 months’ imprisonment starting point for Charge 1 had I convicted you after trial.  However giving you full credit for your plea of guilty, that will be reduced to one of 16 months’ imprisonment. 

37.  For Charge 2 and 3, the offence is also one of pickpocketing, I also take a starting point of 15 months’ imprisonment.  I enhance that sentence by 6 months in regard to your criminal record.  That makes a total of 21 months on each charge.  Giving you full credit for your plea of guilty, that sentence should be reduced to one of 14 months on Charges 2 and 3. 

38.  I turn not to consider the principle of totality.  You had committed these three offences at three separate times on the same date.  I consider that 3 months of each Charge 2 and 3, that is a total of 6 months, is to run consecutive to Charge 1, making your total term of imprisonment 22 months to which you are so sentenced.