HKSAR v. WAN CHI MAN

DCCC 943/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 943 OF 2015

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REASONS FOR SENTENCE

1.  Wan Chi Man you have pleaded guilty to nine charges of theft, contrary to section 9 of the Theft Ordinance[1].

2.  Full details of the offences are set out in the facts admitted by you yesterday.  Briefly, on nine occasions between 26 December last year and 15 June this year you stole eight mobile phones; one tablet computer and an octopus card, valued at approximately $45,292, belonging to owners or employees of various restaurants and shops. 

3.  The owners had advertised the sale or lease of their restaurants and shops in local newspapers.  Using a false name you pretended to buy or lease the restaurants and shops. 

4.  You would go to the restaurants and shops to negotiate the sale or lease.   Whilst at the restaurants and shops you stole five mobile phones; the tablet computer and the octopus card[2]. On three occasions negotiations took place in another restaurant when you claimed your phone was out of battery.   You borrowed a phone and while talking on the phone you fled with the phone[3]. You were arrested on 25 June and under caution admitted all the offences.   

Mitigation

5.  In passing sentence I take into account everything said on your behalf by Mr Mok, including that you voluntarily confessed to all the offences which were committed due to your drug addiction. 

6.  The theft of a mobile phone is a serious offence causing substantial inconvenience to the owner.  There are no guideline sentences for theft of mobile phones.  Mr Mok submits that a 9 month starting point is appropriate for each offence, describing the thefts as “theft by finding” as opposed to pickpocketing[4].  In support Mr Mok relies on the recent decision of Macrae JA in HKSAR v Tumendelger Byambadelger[5].

7.  Whilst accepting that the offences do not fall within the classification of pickpocketing, I do not agree that they are offences of “theft by finding”. You did not just happen to see a mobile phone lying around.  You clearly went to the restaurants and shops intending to steal. 

8.  Nevertheless I do agree that a starting point of 9 month imprisonment is appropriate for each offence[6].

9.  You are a persistent offender.  You have previously appeared in court on 14 occasions amassing a total of 33 convictions of which 29 are for offences of dishonesty.  20 of those offences have been committed since 2010 when you were sentenced to a total of 26 months imprisonment for ten offences of theft in DCCC 291/2010. 

10.  In 2014 for nine offences of theft you were sentenced to a total of 24 months imprisonment in ESCC 3664/2013.  You were released from that sentence on the 26 November 2014 and committed the theft offence subject of charge 1, one month later on the 26 December.

11.  You last appeared before the Kowloon City Magistracy on 14 August this year when you were sentenced to 8 months imprisonment in KCCC 2249/2015 for a single offence of theft.  I am told that you have finished serving that sentence.

12.  I have had the opportunity of reading the reasons for sentence in DCCC 291/2010 and note that on each occasion you pretended to buy a food stall or restaurant. When you met the owner you asked to borrow their phone and left while talking on the phone.  I am told by Ms Poon that you used the same modus operandi in committing all the thefts in ESCC 3664/2013 and KCCC 2249/2015. 

13.  By reason of your persistent offending I increase the starting point for each offence by 3 months to 12 months imprisonment.  Full credit given for your plea of guilty reduces the sentence on each charge to 8 months imprisonment. 

Voluntary confession

14.  Mr Mok submits further credit should be given because you voluntarily confessed to all the offences[7]. Ordinarily a frank confession is subsumed in the one third discount given for pleading guilty[8].

15.  I am told that acting on intelligence you were arrested and interviewed by the police in respect of twelve offences of theft which had the same or similar modus operandi.  Prior to the interview the victims had all reported to the police the loss of their mobile phones; tablet and octopus card and therefore the offences were known to the police. 

16.  You confessed to all the offences.  In respect of the nine offences you pleaded guilty to yesterday the prosecution confirm that for charges 5, 6 & 11 the only evidence is your confession.  In respect of the other charges there is positive identification by the victims and/or CCTV evidence. 

17.  Without your confession the prosecution would be unable to secure a conviction on charges 5, 6 & 11.  I am satisfied in these circumstances the sentences on charges 5, 6 & 11 are to be further reduced by 1 month to 7 months imprisonment. 

Totality

18.  In assessing your overall culpability sight cannot be lost of the fact that in just over six months you committed a large number of theft offences.  A meaningful sentence is to be imposed which is not disproportionate to your culpability[9].

19.  I am satisfied that an overall sentence after plea of 3 years and 4 months imprisonment properly reflects your criminal culpability on the nine charges.  To give full effect to the discount given in respect of charges 5, 6 & 11 I reduce the overall sentence by 3 months to 3 years and 1 month imprisonment. 

20.  I am further satisfied that in considering totality of sentence to be served by you I should take into account the 8 months sentence imposed in August this year in KCCC 2249/2015. I have read the case papers which reveal the offence was committed on the 24 June this year nine days after you committed the offence subject of charge 12. As noted earlier the modus operandi is the same as the other thefts. 

21.  This offence should have been consolidated with the charges now before the court and sentenced at the same time.  Had I sentenced you today I would have ordered 4 months consecutive and 4 months concurrent to the other charges.  Accordingly I further reduced the overall sentence by 4 months to 2 years and 9 months imprisonment.  

Sentence

22.  You are convicted and sentenced as follows:

Charge 1 – 8 months imprisonment;

Charge 2 – 8 months imprisonment; 4 months consecutive and 4 months concurrent to charge 1;

Charge 5 – 7 months imprisonment; 3 months consecutive and 4 months concurrent to charges 1 & 2;

Charge 6 – 7 months imprisonment; 3 months consecutive and 4 months concurrent to charges 1, 2 & 5;

Charge 7 – 8 months imprisonment; 4 months consecutive and 4 months concurrent to charges 1, 2, 5 & 6;

Charge 8 – 8 months imprisonment; 4 months consecutive and 4 months concurrent to charges 1, 2, 5, 6 & 7;

Charge 9 – 8 months imprisonment; 4 months consecutive and 4 months concurrent to charges 1, 2, & 5-8;

Charge 11 – 7 months imprisonment; 3 months consecutive and 4 months concurrent to charges 1, 2 & 5-9; and

Charge 12 – 8 months imprisonment concurrent to all charges.