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DCCC 461/2020
[2020] HKDC 906
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 461 OF 2020
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| Present: |
Ms Sezen Chong, counsel on fiat, for HKSAR. |
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Mr Newman Wong instructed by Yung Yu Yuen & Co, assigned by the Director of Legal Aid, for the Defendant. |
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REASONS FOR SENTENCE
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1. The defendant pleads guilty to one charge of theft, contrary to section 9 of the Theft Ordinance[1].
2. The theft is one of pickpocketing.
3. In summary at around 4 p.m. on 19 April this year Madam Sung, a 79-year-old lady, was shopping for groceries outside No. 323 Tai Nan Street in Sham Shui Po. Many other people were also buying groceries in the vicinity at that time.
4. SPC 2877 saw the defendant standing very close to Madam Sung. After looking at Madam Sung’s shoulder bag, the defendant inserted his right hand into the bag and took out a wallet containing Madam Sung’s identity card, senior citizen card, key chain and $2,070.
5. SPC 2877 immediately intercepted the defendant and recovered Madam Sung’s wallet. Under caution the defendant admitted stealing the wallet out of greed.
6. The theft was captured on CCTV. Four screen captures have been submitted to court showing the defendant inserting his hand into Madam Sung’s shoulder bag[2].
Mitigation
7. In passing sentence, I have carefully considered the oral and written submissions of Mr Wong, including that the defendant, who is 71, is separated from his wife and has been unable to secure full time employment for many years[3].
Guidelines
8. Mr Wong refers the court to R v Vy Van Kien[4]and HKSAR v Zhao Jianguo[5], both appeals from the magistracy and which predate the judgment in HKSAR v Ngo Van Huy where the Court of Appeal set out guidelines and principles for this type of offence[6].
9. Whilst the Court of Appeal in HKSAR v Ngo Van Huy confirmed the guideline sentence for pickpocketing after trial is 12 to 15 months for a first time offender, the Court went on to discuss aggravating features, in particular the aspect of an accused’s previous convictions.
10. In determining where in the range of 12 to 15 months a sentencing court should commence will depend on the facts of the case including the circumstances of the theft; the value of the property stolen; the age or vulnerability of the victim and the expertise used in the theft. The sentencing court will however need to avoid double counting by taking into account a matter later considered as an aggravating feature. Taking into account the defendant targeted an elderly lady, I am satisfied a starting point after trial of 15 months’ imprisonment is appropriate[7].
11. Aggravating features include where the offence is committed in a place in which the public is at particular risk, such as crowded shopping areas where the pedestrian traffic is heavy. In paragraph 6 of his written submission Mr Wong submits that there does not seem to be any aggravating features. Having seen the four screen captures Mr Wong accepts that the area was crowded. I enhance the starting point by 3 months to 18 months’ imprisonment.
12. The fact an accused is a persistent offender is an aggravating feature. The defendant has appeared in court on 48 occasions amassing a total of 52 convictions with 42 for theft or attempted theft, with 18 specifically stated to be pickpocketing. The defendant last appeared in court on 13 July 2018 when he was sentenced to a hospital order for an offence of criminal intimidation.
13. The defendant was last sentenced for pickpocketing in November 2017 (KTCC 2204/2017) when he received a sentence of 8 months’ imprisonment. Mr Wong referring to this conviction submits that the court did not feel necessary to take an overly stiff view of the defendant’s behaviour and that the defendant is more of a nuisance than a threat to the community[8]. Mr Wong asks the court to take into account the defendant’s age in deciding whether to enhance the sentence by reason of his previous convictions.
14. I have had the opportunity of reading the case papers in KTCC 2204/2017[9]. The defendant stole a wallet from the trousers of a 62-year-old man who was shopping at the time. Regrettably, the magistrates’ notes do not set out his reasons for sentence.
15. Although the magistrate was aware of the defendant’s criminal record he appears to have disregarded this and not followed the guidelines in HKSAR v Ngo Van Huy. Notwithstanding his age, the defendant was, in my view, given an extremely lenient sentence. I am also surprised the case was not transferred to the District Court.
16. The defendant was perhaps because of his age dealt with very leniently. The defendant continuing to steal cannot expect to be dealt with very leniently every time. The best that can be said for him is that he has not appeared in court for pickpocketing for just over two years.
17. By reason of the defendant’s persistent offending I am satisfied the starting point is to be further increased by 9 months to 27 months’ imprisonment. Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 6 months’ imprisonment, which I note is the same sentence the defendant received when he last appeared in the District Court for pickpocketing[10].
18. Mr Wong also asks the court to take into account that the defendant might still be suffering from psychiatric illness. I have had the opportunity of reading the case papers in KCCC 1755/2018 including the two psychiatric reports[11].
19. A court may properly allow a discount in sentence where a defendant is suffering from mental illness which played a part in the commission of the offence. The justification for a discount in sentence by reason of mental illness is a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind[12].
20. Nothing has been placed before the court that the defendant committed the crime under an abnormal state of mind whereby his culpability was reduced. Whilst sympathetic to anyone suffering from mental illness I am satisfied in the circumstances there should be no further discount on account of the fact the defendant might still be suffering from mental illness.
21. The defendant is convicted and sentenced to 1 year and 6 months’ imprisonment.
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(D. J. DUFTON) |
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District Judge |
[1] Cap 210.
[2] Madam Sung can be seen in the bottom left hand corner of the screen captures wearing a red hat and a red and white striped upper garment. Screen capture 3 shows the defendant inserting his hand into Madam Sung’s shoulder bag.
[3] See §§1-5 of the written mitigation.
[4] [1991] 1 HKLR 422 (HCMA 1162 & 1179/1990).
[5] HCMA 173/2003.
[6] [2005] 2 HKLRD 1.
[7] See for example HKSAR v Chiu Suet Yee, Angel CACC 105/2010 at §§10-12 & 18.
[8] See §8 of the written mitigation.
[9] Mr Wong was shown the charge sheet, the brief facts and the magistrates’ notes.
[10] DCCC 1123/2015, item 46 on the criminal record.
[11] Mr Wong was shown the charge sheet, the brief facts and the psychiatric reports.
[12] See for example HKSAR v Chiu Peng, Richard[2002] 1 HKC 401.
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