HKSAR v. CHENG WAI LEUNG

DCCC 605/2024

[2025] HKDC 122

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 605 OF 2024

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Theft". This is a pickpocketing case which took place in a market building in Sham Shui Po on a Sunday afternoon.

Summary of Facts

2.  About 3:47 p.m. on 5 February 2024, Madam Lau (PW1)  was about to make purchase at a poultry store situated at Shop No.P2, 1^st Floor, Pei Ho Street Municipal Services Building, Sham Shui Po ("the Store"), which was crowded at that time.

3.  At the same time, WPC 8326 (PW2)  was on duty in plainclothes.  She has been observing the defendant for a while.  She saw him walking around in the vicinity and looking at the possessions of passersby.  When PW1 was standing outside the Store, PW2 saw the defendant unzipping the rucksack carried by PW1 at her back. He then took away a passbook (which was related to PW1's bank account with Hang Seng Bank)  from PW1's rucksack.  PW2 and other police officers nearby immediately approached PW1 and the defendant.

4.  Upon seeing PC 18310 (PW3), who was in plainclothes, approaching him, the defendant threw the passbook into a basket next to him.  PW3 intercepted the defendant when he attempted to flee.  The passbook was recovered and PW1 confirmed that it belonged to her.  PW1 was not aware of the pickpocketing act when it took place.

5.  At 3:56 p.m. on the same day, PW3 arrested the defendant for "Theft".

Mitigation & Sentence

6. The defendant is 62 and has 27 conviction records, which included 23 "Theft" offences (11 of which are specified as "pickpocketing"). His latest conviction is dated early December 2022. He was sentenced to 16 months' imprisonment for "pickpocketing" in DCCC 614/2022.

7. Defence counsel Mr. Tsui informed me the defendant has had 3 marriages and 5 children (aged 22, 19, 17, 16 and 6). He is separated with his current wife. The 3 minor children are supervised by the Director of Social Welfare. The defendant resides with his elder brother in a public housing unit. In mitigation, Mr. Tsui submitted that the defendant's health has been deteriorating in the recent years. During his remand in jail custody in the past 10 months, his health has become even worse. The defendant suspects that he may be suffering from nasopharyngeal cancer.

8. In view of Mr. Tsui's submissions, I called for a medical report on the defendant. According to Dr. Chow of Stanley Prison, the defendant suffers or has suffered from hepatitis (both B and C), gastric ulcer and rheumatoid arthritis, all of which I understand to be chronic illnesses. There is no mention of cancer of any type. Dr. Chow commented that the defendant is clinically stable in prison.

9. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime. The defendant has only himself to blame. He knows all too well the root of his problems.

10. The nature of this case appears to be pickpocketing simpliciter; however, the defendant being a persistent offender constitutes an aggravating feature in terms of sentencing. The offence location being a crowded public place is also an aggravating factor.

11. I have borne in mind the relevant sentencing authorities[1]. Since PW1 suffered no property loss and the defendant's stealing act was an unsophisticated one, I adopt a starting point of 12 months' imprisonment. I will enhance it by 12 months for the 2 aggravating factors mentioned above. Thus, the starting point becomes 24 months. With the timely guilty plea, the

sentence is reduced to 16 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 16 months' imprisonment.

12. The defendant has an appalling criminal record. The court can only do so much in deterring a repeated offender by way of a heavy penalty. Whilst the sentence must carry a deterrent effect, it cannot go out of proportion. To live a law-abiding life with dignity or to continue being a criminal is a matter entirely for him.