HKSAR v. AU KIN WAH

DCCC 184/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 184 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one offence of theft. He has agreed the facts of the case and I have convicted him accordingly.

2.  Briefly, the facts say that this is a pickpocket case which took place inside a train compartment at Kowloon Tong MTR Station in Kowloon.  At the material time the train compartment was crowded.  More detailed facts show that the offence occurred on 4 February this year at about 2115 hours in the evening.  The victim had a Samsung mobile phone valued at about $7,500 in the right pocket of her jacket.  She was on board a MTR train in a compartment.  On arriving at Kowloon Tong MTR Station, she felt someone tampering with her right pocket and found the mobile phone had been stolen. She immediately yelled “Theft”.  The defendant was seen standing behind her holding the phone.  He tried to leave the train compartment but was intercepted by passers-by and dropped the phone to the floor.  The case was reported to the Police.  Defendant was arrested and at the time he denied stealing the mobile phone but he has admitted today by his plea.

3.  The antecedents provided by the prosecution show the defendant is now aged 57 years old.  He has 42 previous appearances in court, 27 of those offences are for offences of dishonesty such as theft or attempted theft; 17 of those are recorded as being for pickpocketing.  The defendant’s antecedents show he was released from his last sentence of imprisonment in June of 2014. 

4.  The defendant mitigates on the basis that he is remorseful, he asks for leniency. 

5.  The courts when approaching the sentencing in cases such as this look at the guidelines laid down in previous cases.  There is a clear guideline laid down in the case of HKSAR v Ngo Van Huy CACC107/2014. Firstly, the starting point for sentence in a pickpocketing type offence after trial for a first-time offender would be in the region of 12 to 15 months’ imprisonment.  The defendant is not a first offender, obviously, I shall therefore take an initial starting point of 15 months’ imprisonment.

6.  I must then take into account the existence of any other aggravating or mitigating factors.  The mitigating factor is the defendant’s plea of guilty; the aggravating factors are as follows:-

- The offence was committed in a public crowded place. It was committed in an MTR carriage and that is rightly recognised as being an aggravating factor in these cases. This calls for an enhancement of the original sentence of 15 months’ imprisonment by 3 months.

- The next aggravating factor is the defendant’s previous record of convictions. The defendant is a repeat offender for these kind of offences and in the years of 2012 and 13 has received sentences of 18 months’ imprisonment in respect of offences such as this and all those offences to some extent must have involved an enhancement on the basis of his previous record of offending. The defendant is a recidivist, there seems little likelihood that he can break his cycle of offending and it would be clear that sentences of imprisonment will become heavier and heavier as time increases. At this stage, I will further enhance the sentence by a further 9 months to reflect the defendant’s persistent offending and the failure of deterrence in the past.

7.  Thus the sentence at this stage is one of 27 months’  imprisonment.  The defendant has entered a plea of guilty, he is entitled to a one-third discount on that sentence.  Thus, the defendant will be sentenced to 18 months’ imprisonment.