HKSAR v. FUNG CHI MAN

DCCC 712/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 712 OF 2013

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Reasons for Sentence

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1. Defendant, you pleaded guilty to a charge of theft, contrary to section 9 of the Theft Ordinance. The offence to which you pleaded guilty is commonly referred to as pickpocketing.

2. The offence was committed on 1 June this year, 2013, at a cosmetics shop called Etude at Argyle Street in Mong Kok at just after 2.35 pm.  On that date at about that time, police officers were on duty in that vicinity and spotted you acting furtively.  They saw you looking at the bags and belongings of pedestrians and that you kept wandering around.  They thus kept you under police observation.

3. Later you then entered the Etude cosmetics shop. They followed you and continued observing you.  The victim, whose phone you stole from her bag then went into the shop. They then saw you fixing your attention on her.

4. You then approached her and were seen extending your left hand into her handbag.  You took from her handbag her Galaxy S3 Smartphone.  You then immediately turned to leave.

5. At this juncture, the police officers then caught hold of you.  You were still holding the Smartphone in your hand.  You struggled and attempted to flee, however you were controlled by the policey officer.

6. Later, the victim confirmed that the Smartphone which you were holding belonged to her.

7. You were arrested and cautioned for pickpocketing, and under caution you said, “Ah Sir, I stole the girl’s phone out of momentary greed”.

8. This whole incident, including your actual pickpocketing, was caught on CCTV footage.  I have today observed in court with counsel and yourself the video recording of what happened at the store, your pickpocketing, the situation and traffic flow.  Although Mong Kok is of course renowned for being a very busy area, I accept that the area to which you had pickpocketed the victim here did not fall within the term of a very crowded area, though no doubt of course there were pedestrians walking up and down on the street just bordering the shop.

9. Defendant, you are 44 years of age and have 16 previous criminal convictions, two further offences of theft to which no conviction was recorded and you were sentenced to DATC.  Out of those 16 convictions, nine of them were for theft and four of them were similar offences of pickpocketing.  Your last conviction was for a similar offence of pickpocketing, when you were sentenced in March 2012 to 18 months’ imprisonment, of which you were then discharged on 2 January 2013.

10. Defendant, you were born in Hong Kong and educated up to secondary Form 3.  You are married, I am told, with a daughter and son aged 25 and 17 respectively.  I am told by your counsel, Mr Kevin Tang, that the reason for you committing this offence was because you were in debt to some $10,000.  You were unable to find a job and you therefore committed this offence to repay your debt as you felt ashamed.  You say out of a moment of greed you realised that the victim’s bag was not zipped up and part of the phone was showing outside the bag, so you took a chance to steal it and were then going to sell it.

11. The strongest mitigating factor in this case is your plea of guilty at an early stage.

12. The Court of Appeal has laid down sentencing guidelines in respect of offences of theft by pickpocketing in the case of HKSAR v Ng Van Hui CACC107/2004.  The sentencing guidelines for this offence for first-time offenders after trial is a sentence of between 12 and 15 months’ imprisonment.

13. You are not a first time offender, this was not your first offence.  As you have many previous similar convictions, the Court of Appeal has said that this is an aggravating factor and there should be an enhancement of the starting point.

14. I reject your mitigation that this was out of a momentary greed.  You were at that location observing pedestrians and looking at their bags.  You were there waiting for an opportunity.  You saw this victim’s bag was open saw her phone and deliberately and intentionally took that phone from her bag. Having read the previous reasons for sentence in your last case, you have adopted the same modus operandi in this case.  Your modus in committing these offences, is waiting patiently to prey on innocent victims who may not be looking after their belongings quite so carefully.

15. In this case defendant, given that you are not a first-time offender, I consider the starting point should be one of 18 months’ imprisonment had I convicted you after trial. That sentence should be enhanced by a further 9 months to reflect your appalling criminal record.  That makes a total of 27 months’ imprisonment.

16. You have of course pleaded guilty, and you are entitled to the usual one-third discount, and in those circumstances, you shall serve a sentence of 18 months’ imprisonment.