HKSAR v. IP WING-CHEONG

DCCC 228/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 228 OF 2016

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Reasons for Sentence

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1. The defendant has pleaded guilty to one charge of theft, contrary to Section 9 of the Theft Ordinance.

2. The facts of this theft offence show a classic pickpocketing scenario.

3. The defendant on 20 January at lunchtime in a busy MTR train carriage stole one smartphone belonging to the victim, which just prior to it being stolen had been placed inside the pocket of the victim’s jacket.

4. The train was travelling from Admiralty towards Wanchai.  The victim was of the view that the compartment was relatively crowded, it being 2 pm.

5. When the train arrived at Wanchai, she felt a nudge from behind.  She turned to see the defendant holding her white mobile phone and trying to hide it under a newspaper.  She immediately confronted the defendant and grabbed him.

6. The case was reported to the police.

7. The defendant was caught red-handed.  When he was cautioned by the attending police officer, he admitted the offence immediately.  He further explained to the officer that he was relying on CSSA, but did not have enough money to spend, by way of explaining his crime.

8. I have been told in mitigation that the defendant is now 67 years old.  He has 59 previous convictions obtained over 48 court appearances, of which 34 relate to theft or offences of dishonesty. Clearly, most of his previous convictions can be defined as pickpocketing offences.

9. I have been told that the defendant is also a drug addict, a heroin addict.  This would explain why the defendant has been a professional thief all his life.  Sadly, drug addiction needs to be fed and that requires money.  This would explain why the defendant told the police his CSSA was not enough to survive on.

10. I have been told that the defendant is married, but his wife lives in China.  They have no children.  He lives alone in a public housing unit.

11. Miss Chan has said all she can on behalf of the defendant in mitigation.

12. His best mitigation today is his plea of guilty and I do note that that plea was indicated at the earliest opportunity.

13. Miss Chan has also asked the court to take into account the defendant’s plea, immediate admission and co-operation with the police, the fact the victim ultimately suffered no loss, and mitigation put forward, including the defendant’s age.

14. But Miss Chan also recognises there are aggravating factors in these facts, commonly known to increase a starting point, and that would be two in this case:  one, the fact the defendant chose a crowded MTR carriage at lunchtime to look for a target and, secondly, his poor previous convictions showing he is a recidivist and persistent offender.

15. Pickpocketing is a nuisance to victims and those who make a living from pickpocketing should face heavier penalties.

16. HKSAR v Ngo Van Huy [2005] 1 HKLRD 1 is the authority applicable here.  The Court of Appeal was of the view that between 12 to 15 months’ starting point would be appropriate for a first-time offender. The same authority highlights aggravating factors that would increase that starting point and I have identified two relevant aggravating factors already.

17. Miss Poon for the prosecution has helpfully referred me to other authorities, including HKSAR v Wong Kan Sun, CACC 265/2013.  The facts of that case and the background of that appellant are similar to the facts of this case.  There, the Court of Appeal was of the view that a 12 months’ starting point was appropriate, with 9 months added for the defendant’s recidivism as well as an additional 3 months for his choice for a crowded pedestrian area.  A 24 months’ starting point was deemed appropriate.

18. I propose to follow the same sentencing exercise here.

19. Defendant, please stand up.

20. I take into account that the theft itself was simple and unsophisticated.  Ultimately, the victim suffered no loss. 

21. I will take a starting point of 12 months’ imprisonment. 

22. I will not ignore the defendant’s previous convictions point towards him being a recidivist and increase that starting point by an additional 9 months.

23. I further add another 3 months for the fact the defendant chose to target a victim on a crowded MTR carriage.

24. Therefore, the starting point is one of 24 months.

25. The defendant is entitled to a discount of one-third for his plea. 

26. For that plea, after that discount is applied, the defendant is sentenced to 1 year and 4 months’ imprisonment.

COURT: Do you understand?

DEFENDANT: Understand.