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DCCC 680/2023
[2023] HKDC 1739
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 680 OF 2023
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| Before: |
His Honour Judge E Lin |
| Present: |
Ms Chung Wing Sze Natalie, Public Prosecutor, for HKSAR |
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Ms Yasmine Zahir, instructed by Godwin Chan & Co, assigned by the Director of Legal Aid, for the defendant |
| Offences: |
[1] & [2] Theft (盜竊罪) |
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REASONS FOR SENTENCE
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1. In this case the defendant, Suen Ping, faced two counts of theft, contrary to section 9 of the Theft Ordinance. Upon his plea and admission of facts, he is convicted as charged.
2. Both cases had been committed within a span of two months in 2023. The method was somewhat similar and are commonly referred to as pickpocketing. Both were committed in marketplaces where people went to browse and to make purchases. As the two offences took place at the same kind of place and the circumstances are similar, I will consider both cases together in order to arrive at the total sentence.
3. The first case took place on 24 January 2023 in a market in Yuen Long. As a lady shopper was browsing, the defendant followed her and, by using a dark coloured vest as cover, he stole her mobile phone in her jacket’s right pocket from behind.
4. The CCTV camera installed at the shop recorded the defendant’s antics. The defendant managed to abscond but on 30 January 2023, he was identified by a police officer on patrol in Yuen Long Plaza. He was arrested on the same day and was initially refused bail when he was brought before a magistrate. However, on 25 February 2023, he was granted bail in High Court.
5. The second offence took place on 19 March 2023. Sometime in the afternoon when another lady shopper happened to be browsing and shopping in Pei Ho Street Market, the defendant followed her and, by holding a plastic bag in his left hand as a cover, stole the mobile phone from her bag and left. Unbeknownst to him, there was a police officer in plainclothes patrolling in the market and had been keeping him under observation. He was thus arrested.
Sentencing Considerations
6. For the offence of pickpocketing, there is clear sentencing guideline. First offenders usually be sentenced to 12 to 15 months. The Court of Appeal case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, pointed out relevant factors in considering sentences for offences of this kind. One of them being whether the defendant was a repeated/persistent offender. As the defendant’s record revealed, he had been convicted of a total of 74 charges, half of which was dishonesty related.
7. I note that on 9 August 2020 he was convicted of a case of theft (pickpocket) for which he was sentenced to 16 months’ imprisonment. Therefore, he committed another offence shortly after his release.
8. In both cases the offences took place in a marketplace where citizens and their shoppers came to browse and purchase their daily necessities. Although it is not so clearly stated in the Summary of Facts, this court can take into account that the markets were busy and crowded places.
9. Further, the defendant had committed another offence (the first offence) soon after he was released from prison.
10. Furthermore, he committed both offences within a very short span of time and soon after he was granted bail by the High Court.
11. I accept that the modus operandi in committing the offence was not sophisticated. The defendant took advantage of the crowded market place where shoppers concentrate on examining the goods and selecting items to buy. I feel justified in adopting a higher starting point of 32 months for both counts. They will be reduced to 21 months to reflect his guilty plea.
12. I take into account also the fact that he was a repeated/persistent offender and will put in an additional 3 months to reflect this aggravating factor.
13. For each of the following factors, I would further order an additional 3 months to the sentence:
(i) The offences had been committed in a crowded area,
(ii) The defendant had committed the offence within a span of a short time and also after he managed to convince a High Court judge to give him bail,
(iii) The offences had been committed within a very short period of time.
14. In all he will have been sentenced to a further period of 12 months.
15. For the two offences, he will be sentenced to 33 months for each count to run concurrently.
Mitigations
16. I have considered the circumstances put forward by his lawyer and the factors revealed in the antecedent statement. The defendant came to Hong Kong in 1979 when he was aged 21, he is at present 65 years old. He started to rely on public assistance at the age of 61. He is divorced, he has one daughter and son, both are now university students. I have also been informed that he has some health issues and is on regular medication.
17. Having considered the matter as a whole, I take the view that the circumstances of the present case warrant a sentence order that serves as a warning to all others in order to have a deterrent effect for those who may be considering committing further offences of a similar nature. Therefore, the defendant’s age, his personal circumstances are not valid mitigating factors.
18. So in all the defendant, for the two offences, is to serve a term of imprisonment for 33 months.
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