HKSAR v. WONG WAI HON

DCCC 1016/2018

[2019] HKDC 832

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1016 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant is charged with 10 counts of theft, contrary to section 9 of the Theft Ordinance, Cap. 210, namely, Charges 1 to 7 and 9 to 11; and one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210, i.e. Charge 8. He pleaded guilty to all and was convicted accordingly.

2.  The sentence was first adjourned on 6 May 2019 for the prosecution to provide information about the defendant’s last two previous convictions of similar offences and, it was again adjourned on 20 May 2019 to today as the defendant discharged his then legal representative and applied for an adjournment.  Now, the defendant is represented by Ms Mak on the instructions of the Director of Legal Aid.

The admitted facts

Charge 1: Theft

3.  It is a charge of shoplifting.  On 11 January 2018, a staff of a “7-Eleven” convenience store in Tseung Kwan O found a few bags of crisps missing from the rack.  The CCTV footage showed that a man had taken away four bags and a can of crisps worth a total of HK$110.50 from the store without paying.

4.  The defendant in a video-recorded interview admitted under caution that he was in that “7-Eleven” store at the material time and he took away the crisps from the shop without paying.  He said he had consumed all of them because he was hungry and had no money.

Charges 2 to 4: Theft

5.  On 5 June 2018, Madam Xu went shopping in a shop in Tseung Kwan O, and she placed her handbag on a paper box in front of the cashier till.  She later found it missing.

6.  The handbag contained various items as stated in the particulars under Charge 2, including cash, two phones and nine credit cards.  The total value was about HK$31,400 and RMB$500.  One of the stolen credit cards was later found to have been used twice at an ATM in Mongkok area later in the same day where a total of $10,000 cash had been withdrawn (Charges 3 and 4).

7.  In the video-recorded interview, the defendant stated under caution that at the material time he was in that shop and he took away the handbag from a woman while she was not aware of it.  Finding the PIN of a bank card in the handbag, the defendant retained the card and the cash and threw away the handbag and everything else in it in a bin in Mongkok.  The defendant then withdrew cash with the card twice from ATM of HK$5,000 each time, totalling HK$10,000.  He had spent all the cash stolen in repaying loans.

Charges 5 to 7: Theft

8.  On 9 June 2018, Madam Chiu shopped in the “PARKnSHOP” supermarket in Tseung Kwan O.  She placed her handbag in a supermarket trolley.  While she was shopping, she found her handbag missing. The handbag contained various items and particularised under Charge 5, including two bank cards.  The total value of all the lost property was about HK$7,020.  One of the stolen credit cards was later used twice for payments of CAD$476.14 and CAD$690.52 at a jewellery shop in Tseung Kwan O later on the same day (Charges 6 and 7).

9.  In his video-recorded interview, the defendant admitted under caution that he was in that “PARKnSHOP” and he took away a handbag from a woman’s supermarket trolley.  He then took the woman’s credit card to a jewellery store and he bought two gold chains with the stolen credit card.  The handbag and the credit card were later thrown away.

Charge 8: Burglary

10.  On 15 June 2018, Madam Cheung, the shopkeeper of a shop in Tseung Kwan O, saw the defendant leaving the shop and then found that her iPhone worth HK$5,500 left on the staff counter was gone.  Madam Cheung tried to give chase but lost sight of the defendant.  The CCTV captured the course of the theft.  The defendant was seen walking around the cashier till to the staff counter before he snatched the mobile phone and left. Madam Cheung positively identified the defendant in a police identification parade on 20 August 2018.

11.  In his video-recorded interview, the defendant admitted under caution that he was in that shop at the material time.  He saw a mobile phone left unattended at the cashier counter, so he took it.  He sold the phone for cash in Mongkok.

Charge 9: Theft

12.  On 21 June 2018, Mr Chu went shopping in a “Wellcome” supermarket in Tseung Kwan O.  He hung his bag onto the supermarket trolley.  While he was shopping, he found his bag was gone.  The bag contained various items, including cash of HK$1,600 as particularised under Charge 9, the total value of which was about HK$4,070.

13.  In his video-recorded interview, the defendant admitted under caution that he was in that “Wellcome” supermarket and he took away a man’s bag from a trolley whilst the man was not aware.  The defendant then took the cash and threw away the bag.

Charges 10 and 11

14.  On 23 June 2018, Madam Ng went to work at her promotion counter in a “PARKnSHOP” in Tseung Kwan O.  She placed her brown handbag in the supermarket trolley and at one stage found that the handbag was gone.  The bag contained various items as particularised under Charge 10, including an iPad, some cash and a credit card.  They were worth at least HK$800.  The stolen credit card was later found to have been used for purchase of a gold wrist chain at HK$14,680 at a jewellery shop in Tseung Kwan O.  The CCTV captured the defendant’s presence in the jewellery shop at the material time.

15.  In his video-recorded interview, the defendant admitted under caution that he was in that “PARKnSHOP” at the material time for shopping.  There he took away a handbag from a supermarket trolley.  He then took away a credit card from the bag and purchased a gold wrist chain at about HK$15,000 from a jewellery store with the stolen credit card.  He then sold it off in Mongkok.

16.  The defendant was arrested on 28 June 2018.  He was cautioned in relation to all of those incidents, after which he said he stole only because he was unable to find work for a long period of time.  That was recorded in the officer’s notebook.

Defendant’s background

17.  The defendant was born in Hong Kong in 1984 and is now about 35 years old.  He was educated up to Secondary 3 and was a decoration worker.  He is divorced with a daughter.  He has altogether six previous convictions entered on five court appearances.  The last three previous convictions are all theft.  In particular, in the last two previous convictions, both entered on 29 June 2018, he was given a total sentence of 16 months’ imprisonment.  It is important to note that those two offences of theft were committed in close proximity in terms of time to the offences in this case.  I shall come back to that in detail later.

Mitigation

18.  Today, Ms Mak for the defence, who confirmed having considered the written mitigation by Mr Surman previously acting for the defendant, submitted a new set of written mitigation.  The details in the antecedent statement already submitted are confirmed.  It was added that the defendant was married in 2009 and divorced in 2016.  He has a daughter aged eight.

19.  The defendant had been working as a decoration worker since leaving school.  He improved by later working as a contractor.  In 2013, he misjudged a quotation and suffered heavy loss in his work.  He therefore took out loans from finance companies and loan sharks.  As a result, debt collectors pressed for repayment and harassed the defendant’s wife and family.

20.  Because of the financial difficulties, the defendant’s wife moved out of the family with the child in 2016 and petitioned for divorce in the same year.  The defendant’s parents sold their self-purchased public housing unit to settle the debts for the defendant.  It is submitted that in a state of shame, low self-esteem and distress, the defendant broke the good conduct he had maintained since 2002 when he was only 17 years old and committed the present 11 offences.

21.  In this case, the defendant pleaded guilty to all the offences, including 10 counts of theft and one count of burglary.  It is submitted that the offences committed were mostly opportunistic.  There were no aggravating features like: no forcible entry into premises; no breach of trust; no possession, presence or use of weapon; the public as a group were not at particular risk; no involvement of an organised gang of thieves; no violence or invasion of privacy; and no physical injury to any person.

22.  For the offence of burglary, it is not disputed that he entered the cashier counter as a trespasser and stole the iPhone.  It is, however, submitted that it was akin to an opportunistic theft or sneaking thief.

23.  Finally, the defence urged the court to consider the totality of sentences, though there were separate acts under the offences. It was also submitted that all offences were committed within a short period of time, and that the defendant had already served the 16 months’ imprisonment in total under his last two previous convictions which offences were committed during the same period of time of this case. 

24.  The defence submitted two cases, the first being HKSAR v Cheng To Ming [2006] 2 HKC 416 where a lower starting point of 18 months was adopted for entering as a trespasser and stealing from open premises; the second one being HKSAR v Kwok Shiu To [2006] 2 HKC 421 where the Court of Appeal stressed the paramount importance of the issue of totality.

Sentence

25.  Very briefly, what the defendant did in this case was, except Charges 1 and 8, that he on several occasions stole certain unattended properties from customers in shops and subsequently used the stolen credit cards for cash withdrawals and purchases. 

26.  For Charge 1, the defendant shoplifted some crisps from the rack of a convenience store.

27.  For Charge 8, although it is a burglary charge, it is a technical one as it involved the taking of property in the staff counter of a shop which was a restricted area for customers.  So that the defendant was technically a trespasser at the time of stealing.

28.  It was observed by the Court of Appeal in HKSAR v Ng Ah Shan [2015] 1 HKLRD 783 that:

“For sentencing purposes, 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 clothes they were wearing or the bags they were carrying.

Provided that the defendant deliberately and with premeditation had taken advantage of the victim’s negligence and stolen property placed beside them, there was no difference in gravity between such a theft offence and pickpocketing.”

See paragraphs 24 and 25 of the judgment.

29.  In other words, what the defendant did in this case under Charges 2, 5, 9 and 10 were no different from pickpocketing.  Under the sentencing guidelines as set down by the Court of Appeal in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, a starting point of 12 to 15 months’ imprisonment is normally for a first offender without aggravating features in cases of pickpocketing.

30.  There is a special feature in this case, namely, the theft under the last previous conviction of the defendant was in fact committed by him after commission of Charge 1 in this case, and the theft (pickpocket) under his second last previous conviction was committed just four days after commission of Charge 11 in this case.  To be specific, from the chronology of events and the relevant Brief Facts supplied by the prosecution, I am given to understand that the defendant committed the theft under the case numbered KTCC 1168/2018 (i.e. the defendant’s last previous conviction) on 29 March 2018.  It was a case of stealing an unattended backpack in a playground, similar to some offences in this case.  For the present case, the defendant committed Charge 1 on 11 January 2018 and Charge 2 on 5 June 2018.

31.  I also noted from the said documents supplied by the prosecution that the defendant committed another theft under the case numbered WKCC 2927/2018, i.e. the defendant’s second last previous conviction.  That was on 27 June 2018, it was a case of stealing unattended cash on a tray in a shop, again similar to some offences in this case.  The defendant committed the last offence in this case, i.e. Charge 11, on 23 June 2018, just four days before that theft under his second last previous conviction (WKCC 2927/2018).

32.  In the circumstances, the said two offences of theft which were already dealt with in the magistracies and recorded as the defendant’s last two previous convictions, should have been dealt with together with all the theft or burglary charges in the present case where the totality principle should have been applied.  Unfortunately, that was not done.  I was told by the prosecution that the total sentence of 16 months’ imprisonment under the last two previous convictions of the defendant had already been served by him.  Nevertheless, as a matter of fairness, I shall take that into account when passing the sentence on this defendant for the present case.

33.  In the said case of Ng Ah Shan, the defendant was convicted of four charges of theft in which she stole various items like purses and smartphones from different victims in different shops within two hours of the same day.  That defendant had a poorer record, 25 previous with 24 shop theft or pickpocketing, and that she committed the offences in that case shortly after she was released from prison.  The Court of Appeal considered that an overall starting point of 3 years should be sufficient. 

34.  Later, in another case of that same defendant Ng Ah-shan, namely, HKSAR v Ng Ah Shan [2018] HKCA 398, that defendant was again convicted of nine offences of theft and one offence of possession of ID card relating to another.  The nine theft charges concerned the stealing of property consisting of handbags or wallets and the personal items inside from different victims in a period of nearly six years.  The sentencing judge took an overall starting point of 3½ years’ imprisonment which was upheld by the Court of Appeal though considered that to be lenient and could have been further enhanced for the multiplicity of theft charges that occurred over a protracted period of time.

35.  I noted that this defendant, though without a clear record, had only one conviction of theft for which he was fined HK$1,500 prior to his last two previous convictions.  As such, he should not be considered as a repeat offender for theft and his record is much better than that of the said defendant Ng Ah-shan.

36.  On the other hand, this defendant had committed a total of 13 counts of theft or burglary, if those two under his last two previous convictions were to be considered together, over a period of six months and that he had committed Charges 2 to 11 of this case whilst he was on bail under the said Kwun Tong Magistracy case.

37.  As what had been said in the said case of Ng Ah Shan, both committing multiple offences and committing offence whilst on bail are aggravating factors which should be reflected in the sentence.

38.  Having considered all the circumstances for all the 13 offences of theft or burglary, i.e. including those two under the defendant’s last two previous convictions and those 11 under this case, I consider that the same overall starting point of 3 ½ years’ imprisonment, just like that in the second case of Ng Ah Shan, is appropriate.  The reason is that, on the one hand, Ng Ah-shan being a repeat offender had a much worse record than this defendant and that, on the other hand, this defendant is to be sentenced for a few more offences of theft than Ng Ah-shan.  I therefore consider that the same starting point of 3 ½ years is appropriate for the defendant in this case.

39.  The defendant indicated his guilty pleas at a mention hearing and should be entitled to the full one-third discount.  The total sentence after plea for all 13 charges of theft or burglary, i.e. including the two under his last two previous convictions and the 11 under this case, should therefore be 28 months’ imprisonment.  As said, the 16 months’ imprisonment already served by him under his last two previous convictions should be taken into account and reflected in the sentences for this case.  It is only just for him to be sentenced to further 12 months’ imprisonment in total for the present case.

40.  For Charge 1 which is a simple shoplifting case, I adopt a starting point of 3 months, reduce it by one-third for the guilty plea, sentence him to 2 months’ imprisonment.

41.  For Charges 2, 5, 9 and 10 which are theft akin to pickpocketing, I adopt a starting point of 15 months’ imprisonment, reduce it by one-third for the guilty plea, sentence him to 10 months for each of these offences.

42.  For Charges 3, 4, 6, 7 and 11, which are theft of chose in action by using the stolen credit cards for cash withdrawals or purchases, I also adopt a starting point of 15 months’ imprisonment, reduce it by one-third for the guilty plea, and sentence him to 10 months’ imprisonment for each of these offences.

43.  Lastly, for Charge 8, as said, although it is a technical burglary in a shop, I consider it no different from other pickpocketing cases and therefore adopt the same starting point of 15 months’ imprisonment.  I again reduce it by one-third for the guilty plea and sentence him to 10 months’ imprisonment for this charge.

44.  To apply the totality principle and to achieve the final total sentence of 12 months as aforesaid, I order the sentence of 10 months’ imprisonment under Charge 2 to run consecutively to the 2 months’ imprisonment under Charge 1; the other sentences under Charge 3 to Charge 11 to run concurrently to the sentence under Charge 1.  The total sentence is therefore 12 months’ imprisonment.