HKSAR v. CHEUNG TSZ KIN AND ANOTHER

DCCC675/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 675 OF 2010

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Reasons for Sentence

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1.  The defendants have each admitted one count of attempted theft, contrary to section 9 of the Theft Ordinance, Cap. 201, and section 159G of the Crimes Ordinance, Cap. 200.  The 1st defendant has also admitted one count of theft, contrary to section 9 of the Theft Ordinance, Cap. 201.  The theft in question here in respect of all three charges is commonly referred to as pickpocketing.

2.  Admitted Facts disclose that at around 5.30 pm on 1 May 2010, a team of police officers had mounted an anti‑pickpocketing operation at Argyle Centre at No. 688 Nathan Road in Mongkok.  At around 5.57 pm, one of the police officers saw the two defendants acting furtively behind two young girls, both students and aged 11 years, outside Shop No. S118 on the 2nd floor of Argyle Centre.  Each defendant was seen to stretch out his hands to unzip the rucksacks carried by each of the girls at the same time.

3.  The police officer caught the shoulders of each defendant and ordered them to stop.  Other police officers then assisted him to arrest the two defendants.  The girls’ rucksacks had been unzipped but nothing stolen.  Each defendant has admitted attempting to steal from the girls, D1 from Lee Hiu-yan and D2 from Leung Wan-sze, namely, Charges 1 and 2 on the indictment.

4.  Under caution at the scene, D1 said it had nothing to do with D2 and it was he who wanted to steal from the girls.  D2 denied under caution.  When searched, a mobile phone was found from the 1st defendant’s bag.  He admitted having stolen it from a girl’s bag an hour before, also inside the Argyle Centre.  The owner of the mobile phone, Ng Ka-yan, aged 15 and a student, was subsequently located and identified the mobile phone to be hers.  It had gone missing from a paper bag she had been holding at about 5 pm on 1 May at the 2nd floor of Argyle Centre while she was shopping.

5.  Each defendant has an appalling record. D1 has 53 previous convictions on 23 occasions, of which 26 are related to dishonesty, two being for pickpocketing.  His last conviction was for attempted robbery on 17 August 2007, when he was sentenced to 2 years’ imprisonment and I am told that he was released from prison on 27 July 2009.  The 2nd defendant has 18 previous convictions on 15 occasions, of which 11 are dishonesty-related, the last dishonestly-related offence being on 31 May 2007, when he was sentenced to 2 months’ imprisonment.  He does not have any previous pickpocketing offences.

6.  The 1st defendant is aged 36 and single. He is currently unemployed and living with his aged grandparents.  His last employment was as an exhibition stall installation worker, but he was laid off in March of 2010.   He committed the present offences because of financial problems.  He needed money to support his own and his grandparents’ living.

7.  The 2nd defendant is aged 37.  He is married and lives with his wife and 9-year old son.  He was unemployed at the time of the offence. 

8.  The greatest mitigation in respect of each defendant is their pleas of guilty.  There is little other mitigation of weight before me.  The 2nd defendant is currently serving a sentence of 6 months’ imprisonment imposed on 6 July 2010 for an offence of possession of dangerous drugs, thus the present offence was committed while he was on bail for that matter, which must be viewed as an aggravating feature.

9.  The courts have said that offences of this nature must be dealt with by immediate custodial sentences.  The leading authority is HKSAR v Ngo Van Huy [2005] 2HKLRD 1.  This case recognises that the problem of pickpocketing in busy places in Hong Kong is endemic.  The present offences occurred at a busy shopping centre in Mongkok on 1 May 2010, which was a Saturday and a public holiday, between 5 and 6 pm when the shopping centre would have been busy with shoppers.  Counsel for each defendant has submitted that there was no evidence that the 2nd floor of Argyle Centre was busy at the time.

10.  This court can take judicial notice that Mongkok is an extremely busy area, and shopping centres in Mongkok especially on a Saturday afternoon of a public holiday would be crowded with shoppers.  The two young girls the victims in Charges 1 and 2 were unaware that their rucksacks had been unzipped.  It was only because of police vigilance that the defendants were unable to steal anything from these 2 girls, hence the charges of attempted theft.  The victim in Charge 3 was not aware of the theft until her phone had been taken away from her.  This reflects a degree of professionalism on the part of the defendants.

11.  The defendants were together at the time, D1 attempting to steal from one victim, whilst the 2nd defendant attempted to steal from the other.  The girls were together at the shopping centre at the time.  Although counsel for each defendant has submitted that the two defendants were not acting in conjunction with each other in respect of Counts 1 and 2, and that each defendant was separately attempting to steal from their respective victims, I do not accept that.  Clearly, they were both stealing from their respective victims at the same time.  The two girls were together at the time in the shopping centre and therefore the defendants were acting in conjunction with each other when they attempted to steal from their respective victims.  The 1st defendant had also stolen from another girl an hour earlier in the same shopping centre.

12.  The Court of Appeal in HKSAR v Ngo Van Huy supra did say at paragraph 9, and I quote:

“In my view, the following guidelines and principles for this type of offence should now 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 items stolen may not amount to much, the significant degree of inconvenience, the relative ease with which it can be effected by a direct invasion of or about the person and privacy of those minding their business in public places and the adverse reputation that the type of crime collectively brings upon the 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 12-15 months after trial is therefore appropriate for a first- time offender. This is an immediate custodial sentence, not a suspended one;

3)   Of course, account must be taken of the existence of any aggravating or particular mitigating features before the court.”

13.  The Court of Appeal went on to list some aggravating features, including the presence or use of weapon or whether the offence was committed in a place in which the public was at particular risk, such as crowded places like the MTR, the racecourse, crowded shopping areas where the pedestrian traffic is heavy, or where the offence is committed by more than one person, or where the accused is a repeat offender or persistent offender.

14.  Here, aggravating features include, at least for Counts 1 and 2, that the defendants committed these offences in conjunction with each other.  They both attempted to steal from the two, girls who were walking together at the time.  In respect of all 3 counts the place in question was a crowded shopping centre.  Each defendant has an appalling criminal record, the notable features of which I have already set out.  The need for a deterrent sentence for these particular defendants as well as the protection of society dictates the starting point of 15 months’ imprisonment should be increased.  There is no doubt that each defendant is a persistent offender of the type envisaged by the Court of Appeal in HKSAR v Ngo Van Huy supra.

15.  For each of the offences for each defendant, namely, Charges 1 and 3 for the 1st defendant and Charge 2 for the 2nd defendant, I take a starting point of 15 months’ imprisonment.  Each defendant has an appalling record.  The offences were committed in a busy shopping centre.  The two defendants were acting in conjunction with each other.  These are all aggravating features attracting further increase in sentence.

16.  Having considered all the matters before me on each of the charges, I take a starting point of 30 months’ imprisonment for each of them.  As I have said, in respect of each defendant there is little mitigation of weight, save for their pleas of guilty for which I will give the usual one-third discount.

17.  In respect of Charges 1 and 3, on each charge, the 1st defendant is sentenced to 20 months’ imprisonment to be concurrent. 

18.  In respect of Charge 2, the 2nd defendant is sentenced to 20 months’ imprisonment.  I have considered the fact that he is presently serving a term of imprisonment and I have also considered the totality principle of sentence in considering whether the present sentence should be concurrent or consecutive, or partly concurrent and partly consecutive.  I consider that this is a separate and distinct offence committed whilst on bail and warrants a consecutive sentence.  I therefore order that the sentence he served consecutively to his present term.