HKSAR v. CHEUNG TZE TO, JOE

DCCC699/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 699 OF 2011

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Reasons for Sentence

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The Charges and the Facts

1.  The Defendant pleaded guilty before me to two charges of theft, contrary to section 9 of the Theft Ordinance, Cap. 210. Both were pickpocketing offences and were committed just 2 days apart.

2.  Briefly, in the afternoon of 10 May 2011, while the police were conducting an operation inside a supermarket, they noticed the Defendant acting furtively and they therefore kept him under observation.

3.  Shortly afterwards, the Defendant was seen picking up a wallet which contained the items particularized in the 1^st charge from an unzipped handbag placed in an unattended trolley. When the Defendant was intercepted, he threw away the wallet but he was arrested.

4.  Under caution, the Defendant admitted committing the offence. He also admitted to the police that he had committed another pickpocketing offence in the same supermarket two days ago. On that occasion, he took away a wallet which had in it HK$100 and RMB¥800 from inside a handbag which was placed in a shopping trolley.

Mitigation

5.  The Defendant is now aged 41 and is single. He was born in the Mainland but he came to settle in Hong Kong in 1978. He was educated up to Form 3 level. Prior to his arrest, he was a labourer in a restaurant, earning about HK$5,400 per month. He was then living with his parents but they were not dependent on him. However, it was said that both his parents are now suffering from ill health, his mother has high blood pressure while his father is suffering from diabetes and had a colon operation in 2009.

6.  The Defendant has been before the court on 5 previous occasions with 12 convictions. 11 of those were “theft” offences and the remaining one was “attempting to obtain property by deception”. He was last released from the prison on 18 September 2010. Yet, just about 8 months later, he committed the present offences.

7.  In mitigation, it was said that the Defendant was not armed with any tools at the time and he did not plan to commit the offences. He only did so out of momentary greed as the handbag was unzipped and was unattended at the time. Insofar as the 1^st charge is concerned, it was also submitted that all the stolen items had been recovered.

8.  Ms. Wong for the Defendant also submitted that the Defendant felt very sorry for what he had done and he was co-operative from the start, making full confessions.

Sentencing Considerations

9.  In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal laid down the guidelines and principles for sentencing this type of offence and observed that theft by pickpocketing is the type of offence that society severely and rightly condemns for the offence could be committed with relative ease but would cause a significant degree of inconvenience to the victim, and would also adversely affect the reputation of Hong Kong. The Court of Appeal considers that a guideline sentence of 12-15 months after trial is appropriate for a first time offender, and depending on whether there are other aggravating factors, the sentence could be adjusted accordingly.

10.  In this case, the Summary of Facts made it clear that insofar as the 1^st charge is concerned, the Defendant did not unzip or cut open the handbag in order to steal. Rather, the unzipped handbag was left in the trolley unattended and the Defendant then took out the wallet from inside the handbag.

11.  As regards the 2^nd charge, since no report had been made and the victim could not be located, I am going to assume in favour of the Defendant that again, he did not cut open or unzip the handbag but just took away the wallet from inside the handbag.

12.  On these facts and accepting that the Defendant was more like an opportunistic thief committing pickpocketing, I am going to adopt an initial starting point of 12 months for both the 1^st and 2^nd charges.

13.  However, these offences were committed in the same supermarket just days apart. No doubt, the Defendant must have considered it easy to try his luck or to find his prey there. In fact, when people are busy doing their shopping, they may not be paying attention to their properties and it would make the Defendant’s commission of the offence easier. In other words, the public are at a particular risk to fall prey to offenders like the Defendant when they are doing their shopping in supermarkets. For this aggravating factor, I am going to increase the initial starting point by 3 months.

14.  Next, the Defendant has had 11 theft convictions. As mentioned above, he was just released in September 2010 but in May 2011, he again committed these offences. All these indicate that there is a need to impose a deterrent sentence on the Defendant so that he would be slow in committing further offences. I would therefore further increase the starting point by 6 months.

15.  With the upward adjustments mentioned above, the starting point which I am going to adopt for both charges is one of 21 months.

16.  The Defendant pleaded guilty and he would get a one-third reduction for his plea. I am also going to give him some reduction for the confessions he made in respect of the 2^nd charge. Without his own admissions, that offence would not have come to light. Other than these, there is nothing in his mitigation which would warrant any further reduction in sentence.

17.  Therefore, for the 1^st charge, the term is reduced from 21 months to 14 months after the one-third reduction for his plea. For the 2^nd charge, the term is to be reduced to 10 months having taken into account his plea and his confessions made to the police.

Totality Principle

18.  These two offences were separate and distinct ones and, in principle, the sentences should be served consecutively. However, applying the totality principle, I consider that an overall term of 19 months is appropriate for these two charges.

19.  I therefore order that only 5 months of the 10-month term in respect of the 2^nd charge are to be served consecutively to the term of 14 months in respect of the 1^st charge, making a total of 19 months’ imprisonment.