HKSAR v. SIT KOON HUNG (also known as LI CHI MING)

DCCC 861/2022

[2023] HKDC 624

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 861 OF 2022

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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 at a vegetable stall in Sai Wan Ho on a Saturday afternoon.

Summary of Facts

2.  About 4:00 p.m. on 11 December 2021, Madam Leung (PW1) was outside a vegetable stall situated at Ground Floor, No.33 Shing On Street, Sai Wan Ho ("the Shop").  She had with her a pink wallet ("the Wallet"), which contained an Octopus card (with $1,300 stored value), cash in the sum of about $100, an access card for her home building; and 2 door keys to her home.  Having checked that the Wallet was in the outside bottom pocket of her backpack ("the Backpack"), PW1 went into the Shop.

3.  A few minutes later, PW1 discovered the outside bottom pocket of the Backpack having been opened and the Wallet missing.  The Police was alerted.

4.  CCTV footage of the Shop captured a male wearing a navy blue cap, a black jacket, green trousers and white Adidas sneakers with black stripes (later identified as the defendant) entering the Shop about a minute after PW1 had gone in.  The defendant was wearing a blue backpack on his front.  PW1 was looking at vegetables.  The defendant moved behind her and stopped.  He opened the outside bottom pocket of the Backpack.  He first turned around and looked to his left. He then turned towards the back of PW1 and took out the Wallet from the Backpack.  Finally, he turned around and left the Shop holding the Wallet in his right hand.

5.  About 5:45 p.m. on 12 December 2021, PC 26430 (PW2) spotted the defendant at a building in Chai Wan and revealed his police identity.  The defendant invited PW2 to his home for investigation.  Upon enquiry, the defendant told PW2 that he had thrown away the Wallet.  Under caution, the defendant said "I stole the Wallet.  There was not much money [inside].  There were a few bank cards.  I dumped the Wallet into a rubbish bin [together with the bank cards]."

6.  When asked about the clothing he was wearing at the time of the offence, the defendant pointed out a navy cap, a black jacket, a pair of green trousers, a pair of sneakers and a blue backpack.  All such items were then seized.

7.  In his cautioned interview, the defendant admitted having taken the Wallet from PW1 and described how he did it.

Mitigation & Sentence

8.  The defendant will turn 74 tomorrow. He has 29 conviction records, which included 19 "Theft/Larceny" offences (9 of which are specified as "pickpocketing"), 10 "Robbery" offences and 6 drug-related offences. His first conviction (which was "Larceny") dates back to 1962 when he was only 12.

9.  Regarding the defendant's latest 2 convictions, prosecuting counsel Ms. Ma informed me that the offence date of Item 28 (i.e. ESCC 2611/2021) on his criminal record was 9 November 2021. In other words, he committed the present offence whilst on bail[1]. Furthermore, Ms. Ma pointed out that the defendant committed the offence in Item 29 (i.e. ESCC 117/2022) when he was on police bail for the present case. Defence counsel Mr. Wan did not take issue with such information.

10.  Mr. Wan informed me that the defendant resides alone in a public housing estate in Chai Wan. He relies on social welfare in the sum of $4,100 per month. Mr. Wan stated that the defendant has served his sentences for the latest 2 offences and was discharged on 2 July 2022. Since he was not granted bail in the present case, the defendant has been remanded in jail custody for about 10 months.

11.  In mitigation, Mr. Wan submitted that the defendant acted alone in this case. No tools were used and PW1's monetary loss was minor. Furthermore, the defendant is an aged person and has recently experienced some health issues. He fainted once in December 2022 and was hospitalized. Doctor found 2 cysts in his liver and kidney.

12.  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 what the root of his problems is.

13.  The nature of this case appears to be pickpocketing simpliciter; however, the defendant being a persistent offender constitutes an aggravating feature. The Summary of Facts does not mention if the Shop was a crowded place, but one can reasonably imagine how crowded a neighbourhood vegetable stall during grocery shopping hours on a Saturday afternoon would be. I have viewed 2 still photographs captured from the CCTV footage. I would not treat the Shop as a crowded public place at the time of the offence.

14.  I have borne in mind the relevant sentencing authorities[2]. Since PW1 suffered minor monetary 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 9 months for the defendant's long history of "Theft" convictions. Thus, the starting point becomes 21 months. With the timely guilty plea, the sentence is reduced to 14 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 14 months' imprisonment.

15.  Mr. Wan has invited me to grant some benefits of the totality principle to the defendant. He submitted that had the offences in Items 28 and 29 and the present offence been dealt with by the same court in one go, there must have been some adjustments in the overall sentence.

16.  I note that the sentencing of Items 28 and 29 took place only 1 day apart. The defendant's criminal record clearly shows that he was given

the benefit of the totality principle in relation to the sentence in Item 29. In my view, committing multiple similar offences within a short period of time is no doubt an aggravating factor. I would not speculate on what the overall sentence would be had all 3 cases been dealt with in one go. I do not see the need of making any adjustment to the sentence in the present case. The sentence of 14 months' imprisonment remains unchanged.

17.  Mr. Wan has also made submissions on compensation. He first informed me that the defendant has some cash in his prisoner's parcel. After taking further instructions, he indicated that the defendant can arrange for his younger brother (aged 60) to pay compensation in the sum of $1,400 within 2 months. Ms. Ma informed me that PW1 did not ask for compensation. I consider the amount too trivial and the suggested arrangement too remote. The defendant apparently has no financial ability to pay and I do not see the need to make any order in this regard.

18.  The defendant's criminal record is an appalling one. He has been in trouble with the law and went in and out of prison every decade since the 1960s. In 2005, he decided to take a break. He reoffended again in late 2021. 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.