HKSAR v. SANDRA JAYA AND ANOTHER

DCCC 614/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 614 OF 2015

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REASONS FOR SENTENCE

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1.  All 3 defendants plead guilty to a charge of theft, which is pickpocketing. The 1^st defendant also pleads guilty to a charge of breach of deportation order, which was issued against him on 13 June 2011.

Summary of facts

2.  The facts admitted by defendants revealed that it was an organised pickpocketing: On 28 May 2015, the victim Mr Shen arrived in Hong Kong from China.  After having lunch with his friend in Tsim Sha Tsui, Mr Shen went to Central where he withdrew USD100,000 from a HSBC branch.  He put the money inside 2 brown envelopes and placed those envelopes in the outside compartment of his rucksack.  He and his friend then returned to K-11 Shopping Centre, Tsim Sha Tsui, and then to take MTR train at Tsim Sha Tsui East Station.  Unbeknown to him, his “NYC” cap, windbreaker and the USD all went missing from his rucksack.  It was a woman police officer who told him that. 

3.  The woman police officer was in fact part of a team of plain clothes police officers who conducted anti-crime patrol in Tsim Sha Tsui area.  They had kept the 1^st to 3^rd defendants under surveillance for quite some time.  When Mr Shen was on the train platform, he put his rucksack on a suitcase.  The 1^st defendant stood to the left of the suitcase, with the 2^nd defendant standing behind him, and the 3^rd defendant standing to the right of the 2^nd defendant. The 3^rd defendant then leaned forward and steady Mr Shen’s rucksack, the 2^nd defendant raised his own briefcase to block the view, and the 3^rd defendant unzipped the rucksack.  The 1^st defendant removed the stolen items one by one.  At that juncture, police officers dashed forward and caught all three of them.  Upon arrest, all the defendants admitted stealing the items as particularised in Charge [1] and they were acting in concert.  Additionally, the 1^st defendant admitted that he was in breach of a deportation order that was issued against him earlier. 

4.  Today the prosecutor informed the court that all the stolen items were recovered by the police, which were then returned to Mr Shen. In other words, Mr Shen suffered no loss as a result.

Mitigation

The 1^st defendant

5.  In mitigation, Mr Yiu asks the court to be as lenient as possible.  He fairly concedes that the guideline in HKSAR v Ngo Van-Huy [2005] 2 HKLRD 1 is appropriate, which means 2.5 years should be adopted by this court as the starting point.  The 1^st defendant co-operated with the authority fully right on the spot, and has now pleaded guilty.  As to Charge [2], Mr Yiu invites the court to apply the totality principle, after having recognised that the sentence for this charge should be 18 months. Concerning the 1^st defendant’s background, Mr Yiu submits that the antecedent statement is by and large accurate, save and except the education level, employment history and family structure.

The 2^nd defendant

6.  Mr Pang tells the court that the 2^nd defendant’s personal circumstances as set out in the antecedent statement are accurate except the information about health and family.  The 2^nd defendant has a clear record and he pleads guilty to the charge, which deserves some credit.  Mr Pang submits that the 2^nd defendant is now very remorseful.

The 3^rd defendant

7.  Mr Pang also represents the 3^rd defendant.  Again he adopts the contents in the 3^rd defendant’s antecedent statement, with minor amendments to the parts in relation to the 3^rd defendant’s health, employment and family.  Mr Pang asks the court to ignore the 3^rd defendant’s prior conviction in sentencing, as it is a shoplifting that happened long time, ie more than 20 years ago.  The biggest mitigating factor in this case is of course the 3^rd defendant’s plea of guilty.

Sentence

8.  Solicitors for the defendants have said all that could possibly be said in mitigation, to which I am grateful.  Before sentencing I have carefully considered all the circumstances of the case.

9.  The 1^st defendant is no stranger to the court system.  Most important of all, he has a prior similar record, which is pickpocketing.  In this regard, he deserves less sympathy than the other defendants. I would therefore make an upward adjustment of 3 months to take that into account.

10.  In my judgment, the starting point for Charge [1] is 2.5 years (30 months) imprisonment.  For the 1^st defendant, his starting point should be 33 months imprisonment as I have just mentioned. For Charge [2], 18 months imprisonment, which is for a plea of guilty, should be imposed on the 1^st defendant.  In light of totality, I would order 8 months of Charge [2] to run concurrently with Charge [1].

11.  So the ultimate sentences for each defendant are as follows:-

The 1^st defendant – Charge [1]: 22 months; Charge [2]: 18 months, 8 months of which concurrent to Charge [1].

The 2^nd defendant – Charge [1]: 20 months imprisonment.

The 3^rd defendant – Charge [1]: 20 months imprisonment.