HKSAR v. LIU HAOWEI AND OTHERS

DCCC 161/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 161 OF 2014

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Reasons for Sentence

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1.  Charge 1 of this case is an attempted theft charge and was, in fact, a failed attempt to pickpocket a victim. The 1st, the 2nd and the 4th defendant have pleaded guilty to this charge.

2.  Charge 2 is a theft offence, again a pickpocketing scenario, where all four defendants have pleaded guilty.

3.  Charge 4, which only the 3rd defendant faced, is a handling stolen goods offence.  The 3rd defendant pleads guilty to handling a stolen mobile phone, a phone stolen by others in a pickpocketing situation.

4.  All these offences took place on 14 December 2013.

5.  All four defendants are two-way permit holders who have come to Hong Kong from the Mainland.  All came together on 13 December and checked into the same hotel.  All checked out on the next day. 

6.  I will not repeat the facts of this case, but in Charge 1 the defendants followed a victim into a shop in Kwai Chung Plaza.  There was an attempt by the group to pickpocket her bag, but before it was possible, the victim discovered what was happening and all defendants left the shop.

7.  The victim of the second charge lost her mobile phone, which was in her handbag in the same plaza at about the same time.  This phone was found by the police when they followed the 1st and 2nd defendant in Kwai Chung Plaza and saw them meet with the 3rd and 4th defendant.  The police, whose suspicions were very accurate, then saw the 4th defendant hand the 3rd defendant the victim of the second charge’s mobile phone.  All four defendants were then arrested.

8.  Besides this victim’s mobile phone, the police found two other mobile phones on the 3rd defendant.  One is the subject of Charge 4.  The 3rd defendant admits that he handled this stolen phone.

9.  After their arrest, all defendants made admissions to the police.

10.  Their best mitigation today is their plea of guilty.

11.  All four defendants have a clear record in Hong Kong.  I have heard full mitigation put forward on their behalf.

12.  I have had letters expressing remorse from the 1st defendant and the 3rd defendant.  The 1st defendant’s mother has also written a letter expressing her fear and concern for her son.  She asks for leniency.

13.  All four defendants are deaf and mute.  The 1st and 3rd defendant also additionally suffer from HIV and take medication daily. All four got together in Shenzhen and came to Hong Kong together. 

14.  The 2nd and 4th defendants suggest they thought they were coming to Hong Kong to earn money by working, but when they realised that was not the case, they nevertheless followed the others to commit these offences.

15.  I have my reservations about this submission. No one forced them to come here and then go on to commit an offence.

16.  All have told me of their modest backgrounds and financial difficulties at home in China.  All are either in their late 20s or early 30s, either divorced or single.  I have been given as much information about their background as can be provided by defence counsel.

17.  I have considered two authorities, the first being HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  The Court of Appeal in that authority sets out a guideline of 12 to 15 months’ imprisonment after trial for first-time offenders who pickpocket.  The Court of Appeal goes on to list a number of aggravating factors that, if exist, can increase a starting point.

18.  I have also been referred to a second authority, HKSAR v Xiao Ping & Ors, CACC 147/2012.  That case involved three appellants, also deaf and mute Mainlanders who came to Hong Kong to pickpocket.

19.  I have considered both those authorities, mitigation put forward, the facts of this case, the defendants’ clear records in Hong Kong, their plea and remorse, as well as their health issues.

20.  I will take into account the totality principle.  There is more than one offence committed, but both were committed on the same day.

21.  After considering all those factors, I will take for each charge a starting point initially of 14 months. 

22.  However, I will add 6 months to that to take into account the aggravating factor that they acted in concert as a gang and came together from the Mainland to commit offences in Hong Kong.

23.  That would be a starting point of 20 months.

24.  However, like the last authority I referred to, I will deduct 2 months, the reason that all four are deaf-mutes and 1st and 3rd defendant have additional long-term health issues.

25.  I will not distinguish the charges and the role of each defendant and take this now 18 months’ starting point for each charge.

26.  As all defendants have pleaded guilty, they are entitled to a discount of one-third from that starting point.  That would be a discount of 6 months.

27.  1st and 2nd and the 4th defendant, they all face Charge 1; they are sentenced to 12 months’ imprisonment.

28.  All three same defendants - D1, D2 and D4 - face Charge 2.  That offence will also be a term of imprisonment of 12 months.  However, for Charge 2, 3 months of that 12 months will be served consecutively to Charge 1, the balance concurrent.

29.  The 3rd defendant, for Charge 2, he is ordered to serve a 12-month term of imprisonment.

30.  The same for Charge 4, a 12-month term of imprisonment.  For Charge 4, of that 12 months, 3 months will be consecutive to Charge 2 and the balance concurrent.

31.  That will mean each defendant will serve a total of 15 months’ imprisonment.

COURT: Do all defendants understand this sentence?

INTERPRETER: All defendants understand.

 

 

	A. J. Woodcock
	District Judge