HKSAR v. CHOW WAI

DCCC 950/2018

[2019] HKDC 531

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 950 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two counts of theft before me this morning.

The Facts

2.  The facts, as revealed from the summary of facts read out in court, are as follows.

3.  At around 6 pm on 25 July 2018, Lei Ying, who was a tourist from mainland China, was at platform 1 of the Admiralty MTR station.  Two officers, PC14508 and PC54153, were on duty nearby.  So was the defendant.  The officers saw the defendant looking around suspiciously and then focusing his sight on Lei, who was then wearing a rucksack.  As the MTR train arrived, Lei, the defendant and the two officers all entered the train.

4.  Now, as the train departed from Admiralty, the defendant raised his right arm with a blue jacket covering it.  He then placed his right hand towards a spot near Lei’s waist and the rucksack.  The defendant’s right hand then reached inside Lei’s rucksack and searched for around 20 seconds.  As the train reached Tsim Sha Tsui station, the defendant withdrew his right hand and left the train.  Lei’s rucksack was partially unzipped and the defendant’s right hand was seen to be holding a black-coloured wallet-like object.  The defendant was then seen also to place the blue jacket and the wallet-like object into his shoulder bag and walked towards platform 2 of the Tsim Sha Tsui station.

5.  PC14508 then decided to intercept the defendant at platform 2 of the Tsim Sha Tsui station, and when the officer searched the defendant’s shoulder bag he found a black-coloured cardholder containing the following items, all belonging to Lei.  This included:-

(a) four bank cards issued by various banks or financial institutions in mainland China;

(b) $3.20 of the local currency;

(c) a People’s Republic of China’s exit/entry permit for travelling to and from Hong Kong;

(d) a People’s Republic of China’s ID card; and

(e) lastly, a Hong Kong visitor landing slip.

6.  The officer, PC14508, then arrested the defendant for pickpocketing. Under caution, the defendant said, “My girlfriend is pregnant so I stole the female’s wallet for some spending money.”

7.  During the search of the defendant, he was also found to have RMB $1,762.30, HKD $12,589.30, AUD $50, MYR $20, USD $14, GBP $5, MOP $70, TWD $100, SGD $20, and THB $20.

8.  Lei only realised that she had lost her cardholder when being told of that by one of the other two officers, PC54153.

9.  The defendant was, according to the antecedent statement, admitted to bail after he was taken back to the Yau Ma Tei Police Station.

10.  However, on what is before me, it is not entirely clear whether Defendant’s bail was granted by the police or by court. But according to the Prosecution, the defendant was granted bail by the court on 26 July 2018.

11.  Turning to the second offence, at around 2:20 pm on 11 August 2018, Liang Shaoxiang, who was also a tourist from mainland China, was at Tung Chung MTR station.  Liang was holding a suitcase and carrying a rucksack at the material time, and she was on her way to Kwun Tong. 

12.  When the train arrived at Sham Shui Po station, a team of officers, including PC15809, were on duty inside the train and at that time they saw the defendant appearing there looking suspiciously.  The defendant had a black-coloured jacket with him, which he used to cover his right arm.  As the train departed from Sham Shui Po station, the defendant used his left hand to unzip and search Liang’s rucksack whilst using his right hand and his jacket to cover up.

13.  On seeing that, PC15809 intercepted the defendant, who was then escorted out of the train at Prince Edward station.  At around 2:57 pm the same day, the defendant was arrested for attempted pickpocketing.  The defendant remained silent under caution.

14.  After being notified by the police, Liang confirmed that her rucksack had been unzipped by someone.  Luckily, her wallet, which contained, among other things, a People’s Republic of China’s ID card and Hong Kong-Macau Entry Permit, was still in the rucksack, and when the defendant was searched by the officers he was found to have with him RMB $2,322,  MOP $60, MYR $21, and almost HKD $3,000.

Points to be noted

15.  From these facts, a few things are to be noted.

16.  Firstly, the defendant had chosen to commit the two offences at crowded places, namely MTR stations and at busy hours.

17.  Secondly, the defendant had chosen his victims for each of the two charges.  The persons on whom the offences were committed were, as noted earlier, both tourists from the mainland China.

18.  Thirdly, in each case, if the defendant had not been intercepted by the police officers who happened to be around, he would have gotten the wallet and/or cardholders of the victims, in which valuable items, including the victims’ travel documents, were contained. 

19.  Fourth and lastly, the second offence was committed whilst the defendant was on bail for the offence of theft, although whether that is a police bail or bail given by the court is not made entirely clear by the prosecution.

Defendant’s background

20.  I turn next to the defendant’s background.

21.  He is 48 years old, a divorcee with two children who are respectively 6 and 8 years old, both of whom, I was told by the defence, were taken care of by their mother.  The defendant had aged parents, both in their 70s, and this morning I was also told that the defendant had been contributing about $3,000 each month for their support.

22.  The defendant is said by Mr Lee, the solicitor appearing for him this morning, to be a cook by occupation.  It was said however that, because of the gout the defendant had been suffering from, he was only able to work in that capacity on a casual basis.

23.  Now, the court has of course been supplied with the criminal convictions record also this morning.  According to these, the defendant has 8 previous convictions for theft and/or attempted theft, and he has also had one conviction for burglary.  The last conviction he had was entered on 1 September 2017, for an offence of theft which, according to Mr Lee, was committed by the defendant the year before.

24.  In any event, according to the antecedent statement, the defendant was released from prison on 30 November 2017, presumably after he finished serving the term.

25.  Now, from these, it is fair to say that, whichever way one looks at it, that the defendant is a repeated offender, a recidivist against whom sentences of imprisonment imposed in the past had failed to deter.

Mitigations

26.  Now, in mitigation, it was submitted by Mr Lee this morning that the defendant has a girlfriend who was living in Shenzhen and who was due to have a surgery.  In order to help, the defendant had to prepare the medical fees for the operation, and although he had borrowed $12,000 from his brother the day before he committed the first offence, he was still concerned that that may not be enough for the purpose. 

27.  It was said by Mr Lee that that $12,000 loan from the brother was actually part of the HK$12,589.20 found on the defendant when he was arrested for the first offence.

28.  More importantly, it was said by Mr Lee that that was the reason for the defendant to have committed the offence under the first charge.

29.  As I have indicated to Mr Lee when he was making the point, I have grave doubts as to this part of his mitigation. 

30.  To start with, I cannot imagine why the defendant would have wanted to have the $12,000 with him when he was out there to commit the offence under the first charge. 

31.  More importantly, given that he had monies of various other currencies with him at the time of his arrest, it is, in my view, highly doubtful that he was driven to commit the offence simply because of a need to help his girlfriend to get her fees.

32.  For these reasons, I do not accept what Mr Lee has said about the reason behind the defendant’s commission of the first offence.

33.  On the other hand, I am prepared to accept that the offences committed by the defendant were comparatively unsophisticated.  It is also clear from the facts that the defendant was acting alone and that the offences were not committed with the use of any equipment.  Also, I am prepared to accept what Mr Lee when he urged before the court to take into account the fact that the victim had not suffered any real loss as a result.

Sentencing considerations

34.  In arriving at the sentences I am going to pass in this case, I have considered, among others, the decisions by the Court of Appeal in the case of HKSAR v Ngo Van Huy, a copy of the judgment of which has been helpfully handed up by Mr Chan for the prosecution.

35.  I have also in this regard found the case of HKSAR v Tsui Chiu Kwai, CACC 452/2011, useful.

36.  Now, based on the facts of this case and with the above authorities in mind, I am of the view that, for each of the two charges, a proper starting point would be a term of 15 months’ imprisonment.

37.  To that, I will add:-

(1) a term of 6 months in view of the fact that the defendant had been a repeated offender; and

(2) another 3 months’ term for the fact that the offences were committed in crowded places and clearly on vulnerable victims.

38.  That will lead to a total term of 24 months’ imprisonment for each of the two charges.

39.  From that, the defendant is of course entitled to a one-third discount and that will reduce the sentence to a term of 16 months.

40.  That said, the court is still left with two other matters:  one, totality, and, two, the fact that the second offence was committed by him whilst he was on bail for the first offence. 

41.  Conduct of this kind (i.e. committing another offence whilst on bail) has been described by the Court of Appeal in various cases as blatant disregard of the law and the audacity on the defendant’s part in committing the second offence only a little over two weeks from the time when he was arrested for the first offence calls for, in my view, a stern response from the court.

42.  With these in mind, what I am going to do is that I will order that 8 months of the term for the second charge to run consecutively to the 16 months’ term imposed for the first charge, thus making a total of 24 months’ imprisonment for the two charges.