HKSAR v. HIPLIAN TAMRIN

DCCC1057/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1057 OF 2011

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Reasons for Sentence

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The Charge and the Facts

1.  The Defendant pleaded guilty before me to one charge of theft laid against him and an unknown person, contrary to section 9 of the Theft Ordinance, Cap. 210.

2.  The facts were relatively simple. In the afternoon of 30 June 2011, PW1 and his wife had just withdrawn HK$150,000 from the Hang Seng Bank at Pei Ho Street, Shamshuipo. When they left the bank, PW1 noticed that the Defendant and another man were following them.

3.  When PW1 and his wife were depositing the cash in another bank opposite, PW1 realised that he required HK$40,000 more. He therefore returned to the first bank to withdraw the cash. He used a HK$50 banknote to wrap the cash and tied them together with a rubber band. Afterwards, he put the cash in the inner pocket of his rucksack and zipped up his rucksack.

4.  When PW1 was making his way back to the second bank, the unknown man who had followed him earlier on bumped against his left shoulder from behind and overtook him. PW1 was therefore alerted and he checked his rucksack. Upon checking, he found that his rucksack had already been unzipped and the money had gone.

5.  At that juncture, he noticed the Defendant overtaking him from his left. Suspecting that the Defendant had stolen his money, PW1 tried to stop the Defendant. A struggle ensued. Shortly afterwards, the Defendant threw the money and his own rucksack onto the ground and fled. PW1 picked up the money and chased behind the Defendant. Eventually, the Defendant was subdued by PW1 and a passer-by.

Mitigation

6.  The Defendant was born in Indonesia. He is now aged 29 and is single. He was educated up to junior secondary level. In his home town, he operated a small stall on the roadside, selling bicycles and helmets, earning about HK$2,000 per month. The Defendant’s father has already passed away. He lived with his mother and his younger sister at home. His elder brother is married with children and is living apart. Since the Defendant’s mother is suffering from ill health and is a farmer earning an unstable income while his younger sister is a student, the Defendant was said to be the main bread-winner of the family.

7.  The Defendant initially planned to get married in August 2011. I was told that the relationship, however, would probably come to an end given the Defendant’s commission of this offence.

8.  In mitigation, it was said that the Defendant came to Hong Kong for sight-seeing and for visiting his cousin who works here as a domestic helper. It was his first time here and he came with a friend, that is, the man who committed the offence with him at the time. Mr. Chan stressed that the Defendant did not deliberately come to Hong Kong to engage in any criminal enterprise. On the day of the offence, the Defendant’s friend saw PW1 withdrawing the cash from the bank and he therefore suggested to the Defendant to steal PW1’s money.

9.  Mr. Chan submitted, it was out of greed, that the Defendant acted with his friend in this pickpocketing activity. Although Mr. Chan accepted that there was some planning involved in their criminal enterprise, he suggested that the Defendant and his accomplice were not professionals as they were noticed by PW1 when they were following him, not being able to “blend in” with the other passers-by.    

10.  Mr. Chan emphasized that no tools or weapons were used in this case and that the stolen money had all been recovered. He therefore asked, on behalf of the Defendant, for as lenient a sentence as possible.

Sentencing Considerations

11.  This is a pickpocketing offence. In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal laid down the guidelines and principles for sentencing this type of offence and observed that theft by pickpocketing is the type of offence that society severely and rightly condemns for the offence could be committed with relative ease but would cause a significant degree of inconvenience to the victim, and would also adversely affect the reputation of Hong Kong. The Court of Appeal considers that a guideline sentence of 12-15 months after trial is appropriate for a first time offender, and depending on whether there are other aggravating factors, the sentence could be adjusted accordingly.

The Starting Point

12.  Following the above guidelines and principles, I am going to adopt an initial starting point of 15 months for this charge.

13.  I note that this offence was committed in the afternoon in Shamshuipo, which is a busy and usually crowded area. In such a public place and at such a time, it is obvious that the pickpocketing would be made easier because of the pedestrian traffic. Similarly, members of the community are at particular risk to fall prey to offenders like the Defendant in such a busy place. For this aggravating factor, I am going to increase the initial starting point by 3 months.

14.  Further, on the facts disclosed, the Defendant did not only commit the offence with another man, the two of them had actually been following PW1 from the time when he first withdrew the cash from the bank. They then found the opportunity to steal the second lot of cash withdrawn by PW1. No doubt, there was planning involved. Although Mr. Chan submitted that the operation was not a sophisticated one, it is clear that the Defendant and his accomplice did the job with a certain degree of professionalism and they certainly acted in a coordinated manner. There is no dispute that when PW1 noticed the Defendant’s accomplice overtaking him, his rucksack had already been unzipped and the cash was already in the Defendant’s possession. Such is illustrative of the professional way the job was done.

15.  The Defendant has a clear record in Hong Kong. However, this should be viewed in context. I was told that this was his first time in Hong Kong. He arrived here on 12 June 2011 and he committed the offence on 30 June 2011. Moreover, with the facts before me, I would like to make the same observation as that made in HKSAR v Liao Mei & Others CACC 432/2004, 17 December 2004, (unreported),

“15. The most that can be said in their favour is that none of the Applicants has a known criminal record. However, given the obvious sophistication of their operation, it would be naïve to believe that this was the first time they had picked anyone’s pocket.”

16.  Therefore, taking into account the fact that the Defendant was acting in concert with another to commit the offence, that in this case, they were targeting the relatively large amount of cash inside PW1’s rucksack, that both of them were visiting Hong Kong as tourists at the time of the offence, and that the job was done professionally, I am going to further increase the starting point by 12 months.

17.  With the upward adjustments mentioned above, the starting point which I am going to adopt for the charge is one of 30 months.

The Sentence Imposed

18.  The Defendant pleaded guilty and he would get a one-third reduction for his plea. Other than this, I do not see any other mitigating factor which would warrant a further reduction in sentence. His family plight is a matter which the Defendant should have carefully considered before the commission of the offence. It cannot assist him in his mitigation.

19.  The fact that the stolen property had been recovered is also not of much assistance for pickpocketing is the type of offence which could be committed with relative ease and it is this feature which renders it necessary for a deterrent sentence to be imposed, irrespective of the amount of loss suffered.

20.  If tools and weapons were used, that would constitute further aggravating factors and the sentence would be increased accordingly. The absence of such could not, in itself, amount to a mitigation factor.

21.  30 months reduced by one-third is 20 months’ imprisonment. The Defendant is therefore to serve a term of 20 months for this charge.

 

 

(Anthea Pang) District Judge