HKSAR v. LIU LINFENG

DCCC135/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 135 OF 2011

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Reasons for Sentence

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The Charges

1. The Defendant pleaded guilty before me to two charges of theft, contrary to section 9 of the Theft Ordinance, Cap. 210, (the 1^st and the 2^nd charges). He also pleaded guilty to one charge of “resisting police officers in the execution of their duty”, contrary to section 63 of the Police Force Ordinance, Cap. 232 (the 3^rd charge).

The Facts

2. Although the Defendant admitted that he committed the three offences in question, insofar as the 2^nd charge is concerned, he disputed the prosecution’s case that he was acting together with other persons. As a result, a Newton Hearing was conducted, and after considering the evidence, I found that the Defendant did commit that theft offence together with two other persons. The reasons for my finding have been set out in detail when I gave my ruling on the matter and I shall not repeat them here.

3. Now, the facts, as admitted by the Defendant and as found by me after the Newton Hearing, are as follows : At about 5:30 p.m. on 13 January 2011, 2 police officers (PW1 and PW2) were on patrol on board a MTR train heading towards Chai Wan. They noticed a group of 3 men acting suspiciously as the group was paying particular attention to the bags carried by passengers. The officers therefore kept the men under observation. The Defendant, who arrived in Hong Kong on the strength of a Two-Way Permit at 11:00 a.m. that morning, was amongst this group of three.

4. When the train was about to stop at the Tin Hau Station, a female passenger, the victim named in the 2^nd charge, stood near the door of the compartment, intending to alight from the train. The three men then moved close to the victim, with one standing at her right, another behind her, and the Defendant standing at her left. The man on her right then dropped something onto the ground. When he bent down to pick the things up, the victim turned slightly and looked down.

5. At that juncture, the Defendant and the other man moved even closer to the victim. The Defendant then reached his hand into the left pocket of the victim’s jacket and took away her iPhone which was valued at about HK$4,400. Afterwards, the Defendant concealed the phone underneath a jacket hanging on his left forearm.

6. The stealing was witnessed by PW1, the Police Sergeant. When the door was opened, the Defendant left the train immediately. PW1 and PW2 gave chase. This is the subject matter of the 2^nd charge.

7. When the two police officers tried to arrest the Defendant, he put up a violent struggle which lasted for about 1 minute. An off-duty police officer happened to be there and he assisted in subduing the Defendant. In the course of the arrest, both PW1 and PW2 were injured. PW1 had tenderness to his right shoulder, left ankle and lower back whereas PW2 had tenderness to the right corner of his lower lip and abrasion to his right index finger and left hand dorsum. This is the subject matter of the 3^rd charge.

8. During a search conducted on the Defendant after his arrest, another iPhone was found on his person. Under caution, the Defendant admitted that he had stolen this phone from a male passenger earlier that day in a MTR station. This is the subject matter of the 1^st charge.

Mitigation

9. The Defendant is now aged 29. He has a clear record in Hong Kong. The Defendant was born in the Mainland and was educated up to Form 1 level. Prior to his arrest, he was a worker in Shenzhen.

10. In mitigation, it was said that the Defendant committed the present offences in order to obtain money to send her mother to hospital for treatment. His mother, unfortunately, has now passed away. The Defendant expresses in a letter to the court that he regrets what he did and he is prepared to accept the punishment. He begs for a lenient sentence so that he could re-unite with his family members as soon as possible.

Sentencing Considerations

11. The 1^st and 2^nd charges concern pickpocketing offences. In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal laid down the guidelines and principles for sentencing this type of offence and observed that theft by pickpocketing is the type of offence that society severely and rightly condemns for the offence could be committed with relative ease but would cause a significant degree of inconvenience to the victim, and would also adversely affect the reputation of Hong Kong. The Court of Appeal considers that a guideline sentence of 12-15 months after trial is appropriate for a first time offender, and depending on whether there are other aggravating factors, the sentence could be adjusted accordingly.

12. Insofar as the 3^rd charge is concerned, that is, “resisting police officers in the execution of their duty”, the Court of Appeal in SJ v Ko Wai Kit [2001] 3 HKLRD 751, which related to a charge of “resisting police officers” under section 36(b) of the Offences against the Person Ordinance, Cap. 212, noted that,

“22. … The sentence to be imposed for such cases must carry a heavy deterrent element, for it is vital that those engaged to execute police duties are enabled properly to do so.”

13. In the present case, although the “resisting” charge was brought under the Police Force Ordinance which only carries a maximum imprisonment of 6 months, the same principle applies. That is, police officers should be protected when they are executing their duties and anyone who resists or assaults the officers when they are doing so should be deterred.

Sentence - the 1^st Charge

14. Following the guidelines and principles, I am going to adopt an initial starting point of 15 months for the 1^st charge.

15. I note that this offence was committed in a MTR station. The MTR is one of the usual means by which people in Hong Kong travel. The Defendant chose to commit the offence in the station, no doubt because it would be easy to find his prey there and also because it would make his commission of the offence easier when people are travelling and when they may not be paying attention to their properties. In a MTR station, the public is therefore at particular risk to fall prey to offenders like the Defendant. For this aggravating factor, I am going to increase the initial starting point by 3 months.

16. Further, I cannot ignore the fact that the Defendant was here as a visitor and he arrived in Hong Kong that very morning at 11:00 a.m. Yet, by that evening, he had already committed two theft offences. People who deliberately come to Hong Kong to commit offences should be deterred. In the present case, I have no doubt that the Defendant is one of those who enter Hong Kong in order to make quick profits by engaging themselves in criminal activities here for, otherwise, there was no reason for the Defendant to be involved in these successive offences on the first day when he was here. I would therefore increase the starting point by another 3 months to reflect this aggravating feature.

17. With the upward adjustments mentioned above, the starting point which I am going to adopt for charge 1 is one of 21 months. The Defendant pleaded guilty and he would get a one-third reduction for his plea. Other than his plea, I do not see any other mitigating factor which would warrant a further reduction in sentence. The Defendant is therefore to serve a term of 14 months in respect of the 1^st charge.

Sentence - the 2^nd Charge

18. On the facts which I have found, the Defendant committed this offence together with two other persons. They acted together at the time, with one of them distracting the victim while the Defendant took the opportunity to steal the phone. Although the acts involved are not particularly sophisticated ones, the way they committed the offence indicated that they must have had put their heads together beforehand to devise the scheme and the modus operandi. Given the degree of planning, and that the Defendant committed this offence in conjunction with others, I am going to increase the starting point of 15 months to one of 27 months.

19. The Defendant committed this offence on board a MTR train at about 5:30 p.m.. No doubt, people were finishing work at that time and would be heading for home or for entertainment. The commission of pickpocketing offences on passengers travelling on the MTR is an aggravating factor, and for this, I am going to increase the starting point by 3 months.

20. Other than the above, there is also the aggravating factor of the Defendant coming to Hong Kong to commit crime and, for the reasons mentioned above, I am going to further increase the starting point by another 3 months.

21. Therefore, with these upward adjustments, the starting point for the 2^nd charge is one of 33 months.

22. Although the Defendant pleaded guilty to this charge, he denied that he was acting together with others at the time. As a result, a Newton Hearing was conducted. In the circumstances, the Defendant is no longer entitled to the one-third reduction which is usually associated with a guilty plea. After considering the matter and having taken into account his “conditional” plea, I am of the view that the Defendant should serve a term of 26 months in respect of this charge.

Sentence - the 3^rd Charge

23. Given the facts in respect of the third charge, and the injuries sustained by the two officers, I am of the view that a starting point of 4½ months is appropriate. The Defendant pleaded guilty and he would receive a one-third reduction for this. As I have mentioned above, there are no other mitigating factors. In other words, the Defendant is going to serve a term of 3 months in respect of the 3^rd charge.

Totality Principle

24. All these offences are separate and distinct and, in principle, the sentences should be served consecutively. However, if so, it would mean that the Defendant has to serve a total term of 43 months’ imprisonment for these three charges. This, in my view, is too great a totality.

25. In this case, taking into account the Defendant’s pleas, I regard an overall sentence of 33 months to be appropriate. I therefore order that :

(a) Only 16 months of the 26-month term in respect of the 2^nd charge are to be served consecutively to the term of 14 months in respect of the 1^st charge; and

(b) The term of 3 months in respect of the 3^rd charge is to be served wholly consecutively to the other terms.

26. The total term is therefore one of 33 months.