HKSAR v. CHAN SING HOI

DCCC 332/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 332 OF 2017

---------------------

---------------------

--------------------------------------

REASONS FOR SENTENCE

--------------------------------------

1.  The defendant was charged with four counts of Theft, contrary to section 9 of the Theft Ordinance, Cap 210. The defendant pleaded guilty and admitted the facts, he was convicted accordingly.

FACTS

Charge 1

2.  On 27 January 2017 at around 12:30 pm, the defendant stole a handbag (worth $60) left by the side of the victim unattended on a seat inside Café’ de Coral.  Inside the handbag was a wallet containing 1 bankcard, 1 octopus card, $120 cash and some stationary.

Charge 2

3.  On 29 January 2017 at around 10:25 am, the defendant stole a bag (worth $500) left unattended on a chair next to the victim inside Ching Kee Restaurant.  Inside the bag was some red envelopes containing cash of about $2,500, 1 LV key bag with 10 keys worth $1,500.

Charge 3

4.  On 2 February 2017 at around 4 pm, the defendant stole a bag (worth $150) left unattended on a sofa seat with the victim’s wife inside McDonald’s restaurant.  Inside the bag was a coin bag worth $20 containing $10 cash and a mobile phone worth $2,500.

Charge 4

5.  On 2 February 2017 at around 4 pm, the defendant stole another bag (worth $100) left unattended on a chair next to the victim inside the same McDonald’s restaurant.  Inside that bag was a wallet containing $1,000 cash, 1 HKID card, 1 student card, 1 octopus card, a key bag containing a bundle of keys including the victim’s home keys (worth $30).

6.  The defendant was arrested on 4 February 2017 at around 6:13 pm, only the LV key bag with 2 keys remained was recovered from the defendant.

MITIGATION

7.  The defendant aged 50 married with 2 children. The family of 4 was living at public housing.  He used to be a construction site worker.  All were opportune theft as the properties of victims were unattended at the time.  He kept the LV key bag for his own use because it looked nice, and there was no particular reason why 2 out of 10 keys were still with the bag.

8.  The defendant had 8 criminal records with 5 similar, he was convicted for snatching in 2005, pickpocket in 2007 and his last 3 theft convictions were in 2008 and 2009.  He was in breach of a suspended sentence imposed in 2015.

9.  The defendant indicated his plea in the earliest opportunity, these were opportune theft, the restaurants concerned were not busy, a starting point lower than the one approved in HKSAR v AGUILAR Garcia Milner & another CACC 485/2012 should be considered.  As to the suspended sentence the defendant urged the court to consider concurrent treatment with no further submission.

SENTENCE

10.  The thefts were of bags left unattended by their owners in restaurants or cafes.  Unlike pickpocketing there are no guidelines for this type of theft although they have been said to be similar in nature to the offence of pickpocketing.

11.  The defence has referred me to the case ofAGUILAR Garcia Milner, this case was about two visitors to Hong Kong committed 5 thefts within a period of 9 days in busy restaurant restaurants or shopping centres.  All the thefts were bags left unattended by their owners in restaurants or cafes.  The Court of Appeal confirmed the starting point of 18 months on each charge but considered a starting point equivalent to 42 months’ imprisonment would be appropriate to reflect the overall culpability.

12.  The thefts in the present case were committed by the defendant on his own within 7 days, and the last two were committed within an hour in the same McDonald’s restaurant.  While each theft on its own might be opportune theft, a series of thefts committed within 7 days, showing a degree of premeditation on the part of the defendant.  The defendant was clearly on the lookout for bags left unattended by their owners. 

13.  The damages done to the victims was not only to the actual loss but also as to the consequential anxiety and difficulties caused to the owners of the stolen property.  In two of thefts key bags were stolen, in one theft a mobile phone was stolen, and personal bankcard, HKID card and student card were stolen in two thefts respectively.  No doubt arrangements had to be made for the replacement of these cards.  The bags stolen were placed on seats near to the victims or their companion, the victim were clearly in close proximity to the thief when their property was stolen. Further, it is that factor that gives rise to the similarity with the offence of pickpocketing (the guideline being a starting point of 12 to 15 months for fresh offender).

14.  I consider the appropriate starting point for each theft is 12 months’ imprisonment.  Further, the defendant has 8 conviction records with 5 of theft, the sentence imposed in the past simply was not sufficient to deter him from committing further offences.  The defendant’s persistence and the failure of previous sentences to deter him amounted to an aggravating factor.  The court has a duty to protect the public, I consider the sentence should be enhanced by 3 months in the present circumstance.

15.  The defendant indicated his plea at the earliest opportunity, he entitled to 1/3 discount.  I do not consider there to be any mitigating factor that calls further deduction.  However, taking into account of the totality principle the sentence will run partly concurrent and partly consecutive, making a total of 22 months.

16.  The defendant was in breach a suspended sentence of 8 months’ imprisonment suspended for 3 years imposed in September 2015 for assault occasioning actual bodily harm.  As Mr But representing the defendant observed there was no special reason not to activate the suspended sentence in full. After taking into account of the length of the sentences, I order 2 months of the activated suspended sentence be run concurrent with that of the present case.

ORDER

Charge 1 sentenced to 10 months’ imprisonment;

Charge 2 sentenced to 10 months’ imprisonment, 4 months consecutive with other charges;

Charge 3 sentenced to 10 months’ imprisonment, 4 months consecutive with other charges;

Charge 4 sentenced to 10 months’ imprisonment, 4 months consecutive with other charges;

making a total of 22 months.

17.  The suspended sentence of KTCC 3631/2015 activated in full, 2 months of which be run concurrent with that of the present case.