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DCCC 215/2015
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 215 OF 2015
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| Date: |
11 May 2015 at 12.19 pm |
| Present: |
Ms Ranee Khubchandani, PP of the Department of Justice, for HKSAR |
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Ms Wong Lai-an, Cecilia Grace, of Christine M Koo & Ip, assigned by the Director of Legal Aid, for the defendant |
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Reasons for Sentence
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1. The defendant, a pickpocket, pleaded guilty before me to one count of theft.
2. Unbeknown to him, his crime was being observed by a group of plainclothes police officers who happened to be patrolling in the area. In the morning, at about 11:20 hours on the day of offence(14 February 2015), defendant was seen approaching a man outside a shop at No 270 Ki Lung Street, Sham Shui Po, and there he stole a mobile phone from the man’s jacket pocket. The officers stopped him immediately and recovered the mobile phone from his trousers pocket.
3. Under caution, defendant admitted that he had stolen because he had no money for food.
4. The defendant, aged 60, has 26 previous, 19 of which are related to theft; 10 expressly stated to be pickpocketing.
5. The court was told in mitigation that the defendant came to Hong Kong in 1976, at the age of 21. Two years later, he began to take drugs and has become a drug addict ever since. The reason he committed the present offence was due to his long time drug problem.
6. But counsel submitted that it suddenly dawned on him at the age of 60 that for the most part of the past 30 plus years, he spent his time in the prison. He had led a miserable life. He has now promised not to take drugs again, cut off his links with his bad peers, look for a job and start a new life after serving the sentence for the present offence.
7. It is further submitted by counsel that the defendant acted alone without the use of any tools, weapons or sophisticated methods, and it could be described as an opportunistic theft. And, further, no one suffered any loss in the incident.
8. There are sentencing guidelines for this type of offence. 12 to 15 months for a first time offender. And if there are aggravating features such as the presence or use of a weapon, or whether the offence is committed in a place in which the public is at particular risk such as crowded places like the MTR, or racecourse, crowded shopping areas, or if the accused commits the offence in conjunction with another, the sentence should be higher, or the accused is a repeat offender, or worse still, a persistent one, the starting point can then be adjusted upwardly to reflect the various aggravation.
9. Counsel for the defendant mentioned the case of Ngo Van Huy CACC 107/2004, the facts of which are that the appellant stole a mobile phone from a woman’s jacket pocket while she was crossing the road in Mong Kok area. The phone was valued at $3,680. The appellate court said the circumstances of the theft in that case put it at the higher end of the range and thus approved the starting point of 15 months.
10. Counsel also mentioned another case, Wong Kang Sun CACC 265/2013, the facts of which are very similar to Ngo’s case except that this time the appellant stole from a man a cardholder containing two staff cards instead of the more valuable item, mobile phone. The appellate court took the view that the facts of that particular case warranted a lower starting point of 12 months instead of 15 months adopted by the sentencing judge and therefore allowed the appeal by reducing the final sentence of 18 months to one of 16 months.
11. I carefully went through the judgments of these two cases and came to the view that there is no inconsistence between them. And I think the value of the stolen item is one of the factors which determines the starting point of the 12 to 15 months range.
12. In the instant case, the stolen property is not something of low value such as the staff cards as in Wong’s case. It is a smart phone valued at $3,000 which is similar to Ngo’s case. And on the authority of Ngo Van Huy, I therefore take 15 months as the starting point.
13. The place where the defendant chose to commit the theft was No 270 Ki Lung Street. It is known to be a busy street in Sham Shui Po area, particularly at that time of the morning, 11 o’clock. For that matter, I add 3 months to the sentence.
14. Looking at his record, undoubtedly, it is an appalling one. His first conviction of attempted theft goes back to as early as 1978. And from then onwards, he continued to commit the crime of stealing and has amassed 19 convictions of theft in total.
15. The defendant frankly admitted through his counsel that all of his previous convictions of theft are to do with pickpocketing. He is clearly a professional pickpocket. His last conviction is also pickpocketing. In December 2013, he was sentenced to 20 months’ imprisonment. He committed the present offence less than 4 months after the defendant was last released from prison on 18 October 2014.
16. I have the opportunity to look at the file of his last case. It is a case of pickpocketing committed on the train. The defendant on that occasion was acting in concert with another to steal a mobile phone from a female passenger. He was sentenced to 20 months’ imprisonment. But, clearly, the sentences in the past did not seem to deter him, and the society at large should be protected from someone like the defendant who is a professional pickpocket.
17. On the question of repeat offending, I add 12 months to the sentence, relying on the authority of Tsui Chiu Kwai CACC 452/2011. The appellant in that case has 21 conviction of theft and nine of them were for pickpocketing. The Court of Appeal approving an 80 per cent increase on account of the defendant being a persistent offender said in paragraph 24 of the judgment that:
“Given the defendant’s poor criminal record and the failure of the previous sentences of 18 months’ imprisonment to deter him from re-offending, we are quite satisfied that the judge was entitled to increase the initial starting point by 12 months in respect of the appellant’s previous record. That this was slightly more than the 9-month increase in Ngo Van Huy’s case is not determinative. There is no authority to support the proposition that an uplift of 9 months is a maximum or that the relevant previous record must be worse than the appellant’s in Ngo Van Huy by a particular factor in order for a larger increase to be applied.”
18. Bearing in mind that the defendant in this case, the defendant has 19 previous of pickpocketing offences, that brings the starting point up to 30 months.
19. As far as mitigation is concerned, apart from his guilty plea, there is not any mitigation of real substance. One-third discount for his guilty plea and he is sentenced to 20 months’ imprisonment.
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