HKSAR v. MOHAMMED JAQUB BALOCH

DCCC382/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 382 OF 2011

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Reasons for Sentence

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1.  Defendant pleads guilty to Charges 1 to 3 in this case; those are 3 counts of theft.

Charge 1

2.  On 17 October 2010 defendant pretended to buy 12 sets of chess from a shop, the saleslady packed the goods for him leaving her own handbag unattended on her desk.  Later, defendant made an excuse to leave the shop.  Then the saleslady found her handbag stolen which contained the items stated in Charge 1, including a mobile phone and $5,000 cash.

Charge 2

3.  On 5 December 2010 defendant went to another shop and pretended to buy shirts therein.  After defendant had left, the salesperson found her mobile originally put on the desk missing.  The phone was worth $4,988. 

Charge 3

4.  On 10 February 2011 defendant went to a boxing school.  An instructor attended to him and let him tour the place around on his own.  Later, the instructor found his mobile phone which he had placed at the reception counter missing.  Defendant had disappeared.  The phone was worth $4,600.

5.  Eleven days later, the instructor met defendant in the street.  Defendant said he did not have the mobile phone now but he could make compensation.  However, he failed to pay the instructor who brought defendant to the police station. 

6.  Defendant admitted to the police that he committed Charge 1.  He said he had sold the saleslady’s mobile phone and spent all the stolen money. 

7.  Defendant is aged 23 now.  He has been convicted six times in court between 2005 to 2010.  In October 2008 he was convicted of theft, he was given 4 months’ imprisonment but suspended for 2 years.  But 7 months later, he was convicted of attempted theft again, this time he was given 2 months’ imprisonment because he was in breach of the suspended sentence,  that suspended sentence was activated fully.  Then in August 2010 he was convicted of 2 counts of theft, he was sent to prison for 2 months on each count.  His last conviction was in November 2010.  On 15 November 2010 he was convicted of theft, he was given 6 months’ imprisonment, suspended for 24 months.  There was also a compensation order of $6,000.  Thus when defendant committed offences 2 and 3 in the present case, he was in breach of that suspended sentence imposed on him on 15 November 2010.

8.  Defence counsel says defendant was born in the Philippines but he is now living with his family in Hong Kong, the family consists of defendant’s parents and younger brother.  Defendant is said to have to bear a large part of the family expenses.  He works as a salesman.  The father has heart illness. Defendant has to shoulder medical fees for the ill father and school fees for his younger brother.

9.  Defence counsel says the offences in the present case while not petty are of lower end in terms of severity.  He rightly points out that there is not much mitigation on the facts of the case, but defendant would make compensation to the three victims, i.e. compensating $6,210 to the victim in Charge 1 for her lost handbag, mobile phone, Octopus card and the $5,000 cash.  Defendant would also compensate the full value of $4,988 to the victim in Charge 2 for the mobile phone and $4,600 to the victim in Charge 3 for that victim’s mobile phone.  The total amount of compensation to be paid is $15,798.  The case has been adjourned for a week to today for that purpose to see whether defendant would make full compensation as he promised.

10.  Today I am informed that defendant’s mother has handed over the money to the defence solicitor who will pay the stated amount into court within 7 days to settle the promised compensation.  Counsel asks me to be as lenient as possible towards defendant. 

11.  Defence counsel is right in pointing out there is not much mitigation on the facts of the case.  The three crimes were committed by defendant with premeditation one after another.  Defendant committed the three crimes within a matter of 4 months.  The three victims lost their mobile phones; the saleslady in Charge 1 even lost her personal card and $5,000.

12.  Defendant does not enjoy a clear record.  He has several previous similar convictions of theft.  It can be seen that the courts were lenient with him in the past.  In October 2008 he was given a suspended sentence but he breached that suspended sentence and 7 months later in November 2010 defendant was given suspended sentence again, but he breached that shortly afterwards when he committed offences 2 and 3 in the present case.  Actually, offence 2 was committed only 20 days after that suspended sentence was imposed on defendant. 

13.  The three offences are actually akin to pickpocketing if not worse.  Defendant acted on pretence to get close to the victims, he stole their personal properties which were around while the victims were distracted by him or were inattentive.

14.  In the light of the facts of the case and defendant’s poor record, I think it is right to adopt 12 months’ imprisonment as the starting point for each charge.  Defendant is entitled to one-third discount for his plea of guilty, therefore, the sentence to be imposed on each charge is a term of 8 months’ imprisonment, but defendant has paid full compensation to the victims, I therefore would reduce one month from each term.  So on each of Charge 1 to 3, defendant is sent to prison for 7 months. Defendant breached the suspended sentence imposed on him in Eastern Magistracy Case 4777/2010 when he committed offences 2 and 3, he first breached that suspended sentence when he committed offence 2, therefore, in relation to Charge 2, I would activate that suspended sentence to its full extent to 6 months’ imprisonment. 

15.  Charges 1 to 3 are separate offences, the three terms of sentences should be consecutive to one another.  In theory, the 6 months’ suspended sentence activated in relation to Charge 2 should also be ordered to run consecutively to all the other terms, but I take into consideration the principle of totality, I would thus order Charge 1, 7 months’ imprisonment; Charge 2, 7 months’ imprisonment; the suspended sentence in Eastern Magistracy 4777/2010 is activated fully to the extent of 6 months; Charge 3, 7 months’ imprisonment, but for the 6 months’ suspended sentence activated in relation of Charge 2, I would order that only 3 months of which are to run consecutively to all the other terms.  I have already said that the 7 months’ imprisonment imposed in each of Charges 1 to 3 should run consecutively to each other.  According to my order, defendant has to serve a total of 24 months’ imprisonment.