HKSAR v. YEUNG KWOK FAI, ANDY

DCCC 673/2020

[2021] HKDC 113

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 673 OF 2020

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to five charges of theft, contrary to section 9 of the Theft Ordinance[1] and one charge of loitering with intent to commit an arrestable offence, contrary to section 160 (1) of the Crimes Ordinance[2].

2.  Full particulars of the offences are set out in the amended summary of facts admitted by the defendant. 

3.  All the offences were committed in Wanchai between 20 February and 23 February 2020 and are summarised below. The defendant was arrested at about 4:55 p.m. on 23 February 2020 inside a vegetable shop.

Charge 1

4.  At about 3:10 p.m. on 20 February 2020 Ms Lam was working in Sun Shing Fat Meat Company when she left her iPhone 6 Plus on a table while collecting goods.  At about 4 p.m. Ms Lam discovered her phone was missing and made a report to the police.

5.  Under caution the defendant admitted he stole an iPhone from a meat shop on 20 February 2020.

Charge 2

6.  At about 4:20 p.m. on 22 February 2020 Ms Wan went to a vegetable store on the G/F of Nos. 40-42 Cross Street.  At about 4:39 p.m. Ms Wan discovered her wallet was missing from her handbag and made a report to the police.  Ms Wan’s wallet contained $7,000 cash, her identity card, two-way permit, credit cards and ATM card. 

7.  CCTV footage of the vegetable store captured the defendant taking Ms Wan’s wallet from her handbag.  The CCTV footage has been submitted to court together with three screen captures showing the time of the theft. 

8.  Under caution the defendant admitted that the $600 cash found on arrest was from the wallet of Ms Wan.

Charge 3

9.  On arrest the defendant was found in possession of a Samsung mobile phone.  Under caution the defendant admitted that he stole the mobile phone from a domestic helper in the afternoon of 23 February 2020 in Wanchai Market[3]. 

Charges 4 & 5

10.  At about 1:00 p.m. on 23 February 2020 Ms Liu went to the Wanchai Market.  At about 1:10 p.m. Ms Liu discovered that her Xiaomi mobile phone and personal Octopus card were missing. 

11.  The Octopus card records showed that a total of $412.50 had been deducted from the card in transactions at Circle K ($270.50), Maxim’s Fast Food ($38) and 7-Eleven ($104).  Ms Liu confirmed that the three transactions were not made by her.

12.  Under caution the defendant admitted that he picked up the mobile phone which was dropped on the ground by an old lady.

Charge 6

13.  At about 4:55 p.m. the same day police officers, including PC 13091, saw the defendant acting furtively near Wanchai Road.  The defendant was lingering in the middle of a vegetable shop when he approached and stared at backpacks and handbags of different people.  After observing the defendant for a few minutes PC 13091 went up and stopped the defendant. 

14.  Under caution the defendant admitted, inter alia, that he went to Wanchai Market at about 1 p.m. with intent to pickpocket.

Mitigation

15.  In passing sentence, I have carefully considered the oral and written submissions of Ms Tjia, including that the defendant aged 57, married with his wife living in mainland China, has been unemployed since June 2019 leading to the commission of the offences because he had no income and limited savings[4]. 

16.  I also take into account that the defendant’s elder sister has recently been diagnosed with chronic kidney disease and that the defendant has offered to donate his kidney to his sister, however due to his remand in custody having committed another offence of pickpocketing the defendant has been unable to attend medical assessment as to his suitability as a donor[5].

17.  I take into account that prior to these offences the last time the defendant was in court for offences of dishonesty was in 2005.

Guidelines

18.  Charges 2 & 3 are offences of pickpocketing.  In HKSAR v Ngo Van Huythe Court of Appeal confirmed the guideline sentence for pickpocketing after trial is 12 to 15 months imprisonment for a first offender, where there are no aggravating features[6]. 

19.  In determining where in the range of 12 to 15 months a sentencing court should commence will depend on the facts of the case including the circumstances of the theft; the value of the property stolen; the age or vulnerability of the victim and the expertise used in the theft.  The sentencing court will however need to avoid double counting by taking into account a matter later considered as an aggravating feature[7]. 

20.  In HKSAR v Wong Kang Sun[8], cited by Ms Tjia, the Court of Appeal held that where the offence was unsophisticated and opportunistic the appropriate starting point before a consideration of aggravating features was 12 months’ imprisonment. 

21.  In HKSAR v Liu Lin Feng the Court of Appeal held that a starting point  of 15 months’ imprisonment was appropriate for theft of a mobile phone[9], the same starting point as in Ngo Van Huy, which also involved theft of a mobile phone.

Aggravating features

22.  Aggravating features include where the offence is committed in a place in which the public is at particular risk. 

23.  Ms Tjia accepts that Wanchai Market can be a crowded place from time to time[10]. 

Starting points

Charge 1

24.  Charge 1 is theft of an unattended mobile phone. 

25.  I am satisfied a starting point of 12 months’ imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty reduces the sentence to 8 months’ imprisonment.

Charge 2

26.  Charge 2 is pickpocket of a wallet.  In my view this was not “basic, simple pickpocketing” as described in HKSAR v Wong Kang Sun. Having viewed the CCTV footage, it is clear the defendant acted quickly with skill using a card to cover his hand so other shoppers would not see what he was doing.  I also note $7,000 was inside the wallet of which only $600 has been recovered. 

27.  I am satisfied a starting point of 15 months’ imprisonment is appropriate.   The defendant clearly took advantage of Ms Wan while she was shopping in the vegetable shop, which was crowded.  I enhance the starting point by 3 months to 18 months’ imprisonment.

28.  Giving the defendant full credit for his plea of guilty reduces the sentence to 12 months’ imprisonment.

Charge 3

29.  Charge 3 is pickpocket of a mobile phone in Wanchai Market. I am satisfied a starting point of 15 months’ imprisonment is appropriate.  The offence was committed on a Sunday afternoon when Wanchai Market would be crowded with shoppers.  I enhance the starting point by 3 months to 18 months’ imprisonment.

30.  Giving the defendant full credit for his plea of guilty reduces the sentence to 12 months’ imprisonment.

Charges 4 & 5

31.  Charge 4 concerns theft of a mobile phone and an Octopus card.  The prosecution proceeds on the basis this was not pickpocketing.  Taking into account the defendant could have returned the mobile phone to the owner when she dropped the phone, I am satisfied a starting point of 9 months’ imprisonment is appropriate. 

32.  Giving the defendant full credit for his plea of guilty reduces the sentence on charge 4 to 6 months’ imprisonment.

33.  I am satisfied a starting point of 6 months’ imprisonment is appropriate for using the Octopus card to obtain property to the value of $412.50. 

34.  Giving the defendant full credit for his plea of guilty reduces the sentence on charge 5 to 4 months’ imprisonment.

Charge 6 - Loitering with intent to commit an arrestable offence

35.  The maximum sentence is a fine of $10,000 and imprisonment for 6 months.

36.  In HKSAR v Yeung Kwan Hung the applicant was seen pulling the handles of two vehicles which were parked in meter-parking spaces.  Upon arrest and caution, the applicant admitted that he was trying to gain access to the parked cars to see if there was anything to steal.  The Court of Appeal considered that a starting point of 3 months was appropriate[11].

37.  The defendant was loitering with intent to commit pickpocketing, a more serious arrestable offence than theft from cars.  The defendant was arrested in the middle of a vegetable shop, similar to the location as shown in the CCTV footage for charge 2.  I am satisfied the proper starting point after trial is 4½ months’ imprisonment. 

38.  Giving the defendant full credit for his plea of guilty reduces the sentence to 3 months’ imprisonment.

Totality

39.  Ms Tjia asks the court to take into account that the defendant has been extremely cooperative[12].  Mr Tso accepts that on charges 1 and 3 the only evidence is that of the defendant’s confession.   

40.  Ms Tjia submits the only evidence on charges 4 & 5 is the defendant’s confession. I do not agree.  The defendant was found in possession of the stolen property the same afternoon the property was stolen and in the same location. 

41.  In HKSAR v Ma Ming[13] the Court of Appeal held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount. 

42.  The Court of Appeal in HKSAR v Ngo Van Nam[14] reaffirmed the position that a judge was not obliged to give a discount over and above the one-third discount explaining that the mitigating factor of a confession was subsumed within the one-third discount.

43.  The court in Ma Ming did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge. 

44.  Sentence must reflect that in the course of four days the defendant committed five offences of dishonesty and was arrested loitering with intent to commit pickpocketing. 

45.  Taking into account the defendant’s cooperation with the police including his confession to all the crimes, I am satisfied a total sentence of 2 years’imprisonment properly reflects the defendant’s overall criminal culpability on the six charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[15].

Sentence

46.  The defendant is convicted and sentenced as follows:

Charge 2 – 12 months’ imprisonment.

Charge 3 – 12 months’ imprisonment with 4 months consecutive and 8 months concurrent to charge 2.

Charge 1 – 8 months’ imprisonment with 4 months consecutive and 4 months concurrent to charges 2 & 3.

Charge 4 – 6 months’ imprisonment with 3 months consecutive and 3 months concurrent to charges 1, 2 & 3.

Charge 5 – 4 months’ imprisonment concurrent to charges 1, 2, 3 & 4.

Charge 6 – 3 months’ imprisonment with 1 month consecutive and 2 months concurrent to charges 1-5.

The total sentence to be served by the defendant is 2 years’ imprisonment.

47.  The defendant is currently serving a sentence of 8 months’ imprisonment imposed by the Eastern Magistracy on 7 October 2020 for an offence of pickpocketing[16].  I have read the case papers from the Eastern Magistracy[17]. The offence which was committed on 24 August 2020 is separate and distinct from the offences committed in February 2020 and was committed whilst the defendant was on bail for the February offences. 

48.  Ms Tjia submits that this fact was taken into account by the sentencing magistrate[18].  A sentence of 8 months’ imprisonment indicates that this fact was not taken into account, the starting point for pickpocketing ranging from 12-15 months’ imprisonment. The magistrate’s notes make no reference to the aggravating feature that the offence was committed whilst on bail.

49.  Ms Tjia further submits that if all offences had been dealt with together part of the sentence may have been made concurrent.  I disagree.  In my view the sentence imposed in the Magistracy was lenient.  Taking into account the August offence was committed six months after the defendant was arrested and was committed whilst on bail, if I dealt with all matters together I would impose a total sentence of 2 years and 8 months’ imprisonment.  Accordingly, I order the sentence imposed today to be served consecutively to the sentence the defendant is now serving.