HKSAR v. NG AH SHAN

DCCC 953/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 953 OF 2016

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Reasons for Sentence

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1.  The defendant has been convicted by me of 10 charges, nine of theft and one of possession of an identity card relating to another person.

2.  The convictions arise out of evidence called by the prosecution on trial, combined with the defendant’s own plea of guilty during the course of the prosecution case.

3.  The evidence called at trial established the nine offences of theft and the one offence of possession of the identity cards, and they show a series of thefts dating from 2010 up to 2016 from shoppers at shopping centres in Hong Kong, where personal items are taken from them while they are shopping; personal items such as their handbags.

4.  The defendant retained the identity cards which were found which had been in the bags which she had stolen, and they were eventually found during a house search, and they form the particulars of the 10th charge that she faces.

5.  Dealing with these matters in some more detail so that the extent of her criminality is placed on record, the 1st charge relates to what is described as an unknown date in mid‑October 2010, and the person who was stolen from was shopping in a shoe shop in Harbour City, Tsim Sha Tsui, and her handbag, which contained various items, was on her son’s stroller.  Whilst that was left unattended the defendant stole the handbag.  As far as the handbag was concerned, certain items were inside it, such as her Home Visit Permit and her Hong Kong ID card, which were subsequently discovered at the defendant’s home.

6.  The 2nd charge relates to an unknown date in mid‑January 2011.  The lady in that question was walking alone in Sham Shui Po with her wallet, and other personal possessions belonging to her, on her person.  When she went to make certain street purchases, she found that her wallet, which contained her identity document, had gone missing.

7.  On the 3rd charge, the lady was shopping in the Taste Supermarket in Festival Walk in Kowloon some time in mid‑February 2011. She placed her handbag containing her ID card and Home Visit Permit on a trolley which was left unattended while she made payment.  When she turned back, she found the items had gone missing, or the handbag had gone missing, with its contents.

8.  The 4th charge is relating to a date in late May of 2011, where the victim was trying on clothes in a boutique in La Foret Mall in Causeway Bay.  She had placed her handbag outside the fitting room to try on clothes.  She found her handbag, with identity documents, had gone missing.

9.  The 5th charge related to an unknown date in August 2011.  A lady was trying on clothes in a boutique in Harbour City, Tsim Sha Tsui.  Her handbag was put, with other personal belongings, on a table. She found her clothes and the handbag had gone missing when she went to look for them.

10.  The 6th charge relates to Zara in IFC Mall in Central on 28 November 2015.  The lady had placed her belongings on a shelf when she was shopping there.  They were taken, including her identity documents.

11.  The 7th charge relates to the Taste Supermarket in Festival Walk in Kowloon Tong.  It relates to a date in December 2015. Handbags containing ID cards and Home Visit Permits were placed on a trolley which was left unattended for a short period.  The handbag was taken.

12.  The 8th charge occurred on 28 February 2016, and Miss Gigovic, who we heard from in court, was shopping in City Super. She placed her handbag, which contained various items, on a trolley.  She was looking after her son, so she did not pay attention to the trolley, and eventually found her handbag, with all the items in it, had gone missing.  On that occasion, the CCTV cameras of the supermarket in fact captured the person, who turned out to be the defendant, picking items off the trolley.

13.  The 9th charge related to what is described as an unknown date.  A person shopping in Tsim Sha Tsui - and again, we heard from the victim, and he placed it some time - I think it was in 2010 - he placed personal items on a baby stroller; it was left unattended, and again, they went missing.  Identity documents were included.

14.  Police were able to identify the defendant from the CCTV footage.  They went to her residence, which is in Sham Shui Po. Whilst inside, a police officer searched the top of the toilet, and he found a total of nine Hong Kong identity cards, the cards taken in the thefts that I have described.  They were identity cards, Home Visit Permits, and mainland ID cards.  Some various other items taken in the thefts were found as well, such as handbags.

15.  As I have already indicated, the 10th charge relates to possession by the defendant of those Hong Kong identity cards.

16.  As far as the defendant’s antecedents are concerned, I have an antecedents statement.  She is now aged 43.  She is a mother - she has a son and a daughter - and is divorced from her husband.

17.  The defendant has a large number of convictions.  There are 21 previous appearances in court; a large number of theft and what are described as shoplifting and pickpocketing cases; most recently, on 27 June 2016, which was a shoplifting, and sent her to 4 months’ imprisonment; the most recent case, which was described as pickpocket, dated 2013, where she received a final sentence of 24 months’ imprisonment, and that in fact forms a case that has been reported under her name:  HKSAR v Ng Ah Shan [2015] 1 HKLRD 783, where it can be seen from the facts of that case that a similar modus operandi was practised.

18.  I can only echo what the Court of Appeal in fact has said about her:

“The applicant...”

being the defendant:

“...is obviously an incorrigible recidivist. She has once and again been sentenced to imprisonment for theft offences, and the numerous short-term custodial sentences have apparently had no deterrent effect on her.”

That was the opinion of the Court of Appeal in 2014. So those are her antecedents.

19.  As far as this case is concerned, I adopt the approach in this way to determine, in respect of each of the charges, the appropriate starting point for sentence on each charge, and then what deduction should be appropriate for the defendant’s late plea of guilty during the currency of the prosecution case.

20.  As far as the consideration that I have to deal with is the appropriate starting point for these kinds of thefts.  In the Court of Appeal case involving the defendant on the last time, when she was convicted of three offences of theft involving other people’s property, the Court of Appeal described her modus operandi as “walking away with another person’s property”, and that appears to be, on the facts that I have in these cases, the same approach pursued by her in relation to these victims.  And the Court of Appeal said, in respect of that, there was no real distinction between pickpocketing and merely walking away with another person’s property:

“The nature of the offence should not be affected by whether the victim’s property was placed inside their clothing or bags nearby as opposed to inside the clothing they were wearing or the bags they were carrying. Provided the defendant deliberately and with premeditation had taken advantage of the victim’s negligence and stole property placed beside them, there was no difference in gravity between such a theft offence and pickpocketing. This was not the case where the defendant has stolen property left behind by the victims or whilst passing by when the victims were careless. The defendant consciously preyed on the victims’ negligence and deliberately seized the opportunity presented by the victims’ inattention to steal their belongings placed nearby, including their purses containing not only cash but also their identity documents and bankcards.”

The case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 was applied.

21.  There is not really much I can add to what the Court of Appeal said about her modus operandi in the last appeal case.  From the facts that I have heard and were admitted, it appears that the same approach has been conducted by the defendant.  It is the way she commits her crimes, and it would appear to be that the same starting point would be appropriate on these total of nine theft charges.

22.  The starting point adopted on the last occasion was one, I believe, of 15 months’ imprisonment, together with a further 9 months’ imprisonment added for the fact of the defendant’s previous poor record.  It would, of course, be open to me to increase that starting point because the defendant has in fact continued to commit offences of theft since that occasion in 2014, when the Court of Appeal dealt with her.  In fact, there are at least four more occasions where she has committed offences of theft since then.

23.  However, as is apparent from the Court of Appeal’s case, there does appeal to be some at least a ceiling for these matters, and the defendant has, on one view, perhaps approached that ceiling already.

24.  The nine theft offences, I believe, can be considered together.  A starting point can be adopted on each of those, and that would be to take 15 months’ starting point for the kind of offence the defendant commits and then add a further 9 months to that as an aggravating factor, being her failure to respond to the deterrent effect of previous sentencing, and that would lead, on each of the theft offences, to a starting point for sentence of 24 months’ imprisonment.

25.  There is one other charge to consider, and that is the 10th charge, where she faces the charge of possession of identity cards relating to another person.  In fact, nine cards are particularised.  All relate to charges taken from thefts.

26.  The defence has brought to my attention what might be considered the leading defence case on this, which is HKSAR v Li Cheng Li [2005] 1 HKLRD 865.  It said, in relation to this offence, that:

“In the absence of exceptional circumstances, the sentence upon guilty plea for possessing a forged identity card or a card belonging to another should be 12 months’ imprisonment irrespective of whether the offender was lawfully staying in Hong Kong. Where such an identity card was displayed or used for seeking illegal employment or extending the period of stay in Hong Kong, the sentence upon plea should be 15 months’ imprisonment. Where there are exceptional mitigating factors, the court should exercise discretion as appropriate in determining sentence.”

27.  The defence has submitted to me that the defendant has no particular reason for retaining these cards.  There is no suggestion she has used them or tried to sell them, and she has never displayed or used them or sought employment by using them, or in fact used them to attempt to deceive another person.  Her reason for retaining them appears to be peculiar to herself.  They say that the court should take a lower starting point than set out in the relevant authority.

28.  Of course, that would involve me ignoring the fact that she has got nine identity cards, a considerable number, which seems to me to aggravating the starting point for sentence set out in the case of Li Cheng Li.  In fact, I see no reason to distinguish this case from the theft offences, and I consider the same starting point should be adopted for sentence in relation to the 10th charge:  that of 24 months’ imprisonment.

29.  Now I turn to what, if any, discount is appropriate to the defendant for her belated admission of her own criminality. I will observe at this stage, before I turn to this, that the defendant, in my consideration, was facing an inevitable conviction on these offences.  The evidence is quite overwhelming, and I believe that must have affected her mind when she decided to plead guilty.

30.  She is, as the Court of Appeal have said in the past, an incorrigible recidivist.  There seems to be no prospect of her leaving this life of crime that she has taken to over the years.

31.  Nevertheless, some time is saved.  The prosecution case was embarked upon.  Most of the evidence was in fact agreed. But civilian witnesses were called to testify to their ownership of their own property, and that was really, as it turns out, a complete waste of time and a waste of their time.

32.  The case of HKSAR v Ngo Van Huy [2016] 5 HKLRD 1 sets out the approach to take by the District Court specifically referred to where there is a late plea of guilty:

“The one‑third discount which is normal is appropriate for those defendants who indicate on plea day they intend to plead guilty.”

The defendant did not do so.

“If a plea of guilty is tendered on the first day of trial, the appropriate discount was 20 per cent.”

Well, the plea of guilty was tendered later than that, after trial had commenced and evidence had been called. In fact, the prosecution case was closed.

“The discount to be afforded to a defendant who pleaded guilty after plea was taken and during the trial itself would usually be less than the 20 per cent afforded to a defendant who pleaded guilty on the first day of trial and would reflect the circumstances in which the guilty plea was tendered. The discount in those circumstances is pre‑eminently one for the trial judge having regard to all the circumstances mentioned in paragraph 215.”

And those factors are set out, as I say, in paragraph 215, and they refer to the holding of a voir dire. It says:

“In other circumstances, it may occur in circumstances where the defence have sought to test some other aspect of the prosecution case. Discount to be afforded to the defendant in circumstances is one for the trial judge.”

33.  I make my determination on the level of discount on the basis that the defendant did not plead guilty on the first day of trial, that the evidence against her was very strong, and that witnesses were called who, it would appear on her plea, were completely unnecessary.  The 20 per cent discount is not appropriate for her.  I consider that the discount that should be given to this defendant in respect of each of these charges is one of 15 per cent.

34.  By my calculation, that would lead to a final sentence on each of these charges of one of 20 months’ imprisonment, which is slightly less, in fact, than what would be accorded as half of the one-third discount.

35.  So my sentence on each of the charges, 1 to 10, is one of 20 months’ imprisonment.

36.  I now must determine what is the appropriate totality of sentence.

37.  The charges that are dealt with here date over quite a long period of time, from 2010 to 2016, and it can be seen that within that period, on the defendant’s own criminal record, she has been dealt with for offences throughout that period, so these offences must have been interspersed with offences for which she has in fact been convicted and sentence to previous terms of imprisonment.

38.  On her last occasion, which involves offences committed on the same day, the Court of Appeal, despite considering her to be an incorrigible recidivist, said that the three counts of what were described as pickpocketing, even when the applicant’s criminal records are taken into account, an overall starting point of 3 years sufficiently reflects the gravity of the case.

39.  This case is different from the last occasion she appeared before the Court of Appeal.  There are nine charges that relate to some kind of pickpocketing offence, but I think it must be conceded, as submitted by the defence, that some of them are now quite old.  Certainly the 1st to 5th charges are quite old.

40.  Nevertheless, the overall starting point for these offences certainly cannot be lower than it was on the last occasion, as the defendant has gone on to commit further offences.  But having said that, there of course must be, as it were, a limit to how far the commission of these offences can lead to increased sentences of imprisonment.

41.  What I shall do is take an overall starting point here in the region of 3½ years’ imprisonment, and that will be deducted again by the 15 per cent rather than the one‑third that would have been appropriate had she pleaded guilty at an earlier stage, and that will lead to a final sentence of 35 months’ imprisonment.

42.  I shall achieve that by ordering the following:

Charges 1 to 5 will be served concurrently to each other; and

Charges 6 to 10 will be served concurrently to each other; but

15 months of 6 to 10 will be served consecutively to 1 to 5.

43.  That leads to an overall total of 35 months’ imprisonment, and that is the sentence I impose.