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DCCC 7 & 338/2019 (Consolidated)
[2019] HKDC 1425
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 7 & 338 OF 2019
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| Present: |
Miss Stella Lo, Public Prosecutor, for HKSAR |
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Mr Alan So instructed by Messrs. Tse Yuen Ting Wong assigned by the Director of Legal Aid for the defendant. |
| Offence: |
[1]-[3] Theft(盜竊罪) |
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REASONS FOR SENTENCE
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1. The defendant, a pickpocket, picked a man’s pocket and stole his mobile phone in a crowded market in Tin Shui Estate on 20 November 2018, and about 3 months later on 23 February 2019, he took away an unattended suitcase left by its owner, a woman from the Mainland, in an alley while she was shopping in a nearby cosmetic shop.
2. The defendant pleaded guilty before me to 2 counts of theft (Charges 1 & 3) while Charge 2 (another offence of theft) is left on Court’s file.
3. The prosecution case is that on 20 November 2018 at about 5 p.m., Mr. Fung had put his mobile phone in his trousers’ back pocket while shopping in Tin Shui Market. All of a sudden, he felt someone take away his mobile phone, then turned around immediately and confronted the defendant who was standing right behind him; a struggle was ensued during which Mr. Fung’s phone fell from the body of the defendant. With the help of others, the defendant was eventually subdued and handed over to the police.
4. About 3 months later on 23 February 2019, Miss Zhang, a visitor from the Mainland, left her suitcase full of groceries (the suitcase and its contents worth about $3,900) in an alley next to a cosmetic shop because the shopkeepers did not allow customers to bring with them suitcases into the shop. When she came out of the shop, she found her suitcase missing.
5. The CCTV of the shop captured the actions of the defendant taking away the suitcase. The defendant brought the suitcase back to his residence in Tin Tsz Estate, Tin Shui Wai where he dumped the suitcase at a refuse collection point but kept its contents. On the following day, however, the defendant returned to the cosmetic shop, a security officer who had viewed the CCTV before recognized the defendant, a report was made to the police and the defendant was thus arrested. At his home, the police found the suitcase’s contents but the suitcase itself was recovered from a nearby refuse collection point.
6. The defendant, 61, is married with 2 children- they are twin brother and sister, now aged 18; wife has mental problems. The defendant is no stranger to the law who has a long list of previous convictions - 69 convictions, 32 of them are theft or attempted theft.
7. In mitigation, the court heard that the defendant was unemployed and was in financial difficulty at the time of the offence. Counsel for the defendant said that although all the family members, relatives and friends are disappointed at the defendant’s behavior, they still have hopes for him.
8. In his letter to the court, the defendant stated that he had missed his daughter’s wedding because of his incarceration for the present offence, he could imagine the agony his daughter suffered of having to explain away the absence of her father to the guests. Notwithstanding this, his wife and daughter have not given up hopes on him. He is now determined to turn over a new leaf.
9. Counsel for the defendant also submitted medical proof to show that the defendant is suffering from liver as well as urinary problems.
10. Charge 1 is clearly a case of pickpocketing while charge 3, strictly speaking, is not, but in terms of seriousness is not much less than that of charge 1.
11. In dealing with a recidivist who has a long list of previous convictions (35 offences, 17 of which are theft or attempted theft), the Court of Appeal in Ngo Van Huy CACC 107/2004 has this to say in paragraph 10 of the judgment:
“Para. 10 - ………………….
- The starting point is 15 months. The circumstances of the theft in the present case puts it at the higher end of the range.
- From the starting point there must, we feel, a substantial increase on account of the appellant’s appalling previous record for theft……………….. The need for a deterrent sentence for this particular person as well as the protection of society dictates that, notwithstanding the fact that what was involved in this case was the theft of a mobile telephone worth $3,680, there should be added another 9 months.
- There also exists the aggravating feature that the offence was committed in a crowded area. The junction of Argyle Street and Sai Yeung Choi Street in Mongkok is a very crowded part of Hong Kong, particularly at that time of the evening. We would therefore add another 3 months to the sentence.
-……”
12. Given the facts of the present case, I take 15 months as the starting point for charge 1; as this happened in a crowded market, a further 3-month is added; regarding the fact that the defendant is a repeat offender, another 9-month is added, which would take the starting point up to 27 months.
13. However, for charge 3, I would take 12 months as the starting point, and add a further 3 months for his being a repeat offender, and the fact that the defendant committed the offence while on bail which would aggravate the matter further, so another 3 months are added, which would take the starting point to 18 months.
14. Insofar as mitigation is concerned, apart from his guilty plea, there is not anything of substance. His plea is timely, so he is entitled to a full one third discount.
15. Giving the appropriate discount, the starting point is reduced to 18 months for charge 1 and 12 months for charge 3.
16. Taking into account the totality principle, I order that 6 months of charge 3 should run consecutively to charge 1, the total term is one of 24 months’ imprisonment.
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