HKSAR v. AU KIN WAH

 DCCC518/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 518 OF 2010

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Reasons for Sentence

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1.  Defendant has pleaded guilty to one count of theft, contrary to section 9 of the Theft Ordinance, Cap.210. The facts show that it is a pick-pocketing offence.

2.  At about 4.40 in the afternoon on 11 April 2010, two police officers on anti-crime patrol in the vicinity of Canton Road, Mong Kok, spotted the defendant acting suspiciously by crowding - and I quote - “crowding around passers-by”. Those officers then followed the defendant and observed him.

3.  At a fruit stall at the market at 1066 Canton Road, both officers saw the defendant pick the pocket of a male standing directly in front of him. The defendant immediately fled and both officers chased and intercepted the defendant. The victim’s wallet was found on the defendant’s person.

4.  Under caution, the defendant admitted the offence.

5.  The defendant has an appalling criminal record, 28 previous convictions, many of which are theft related, specifically pick-pocketing offences. Prosecution has pointed out that there are 9 pick-pocketing convictions and 3 attempted pick-pocketing convictions. The defendant’s first criminal record was 33 years ago in 1977 and his last conviction was July 2009 where he was sentenced to 10 months’ imprisonment for attempted theft. He was released after a 10-month sentence this February. This offence was committed in April.

6.  From the defendant’s record, I can conclude that he is a recidivist, a repeat offender. This is a factor relevant to sentence.

7.  I have been told that the defendant is 53 years old now, separated and living on CSSA. Defence submits that he was not there to pick-pocket but was tempted by sight of a wallet protruding from the victim’s pocket. I would say the police’s observations suggests otherwise. The defendant was seen acting suspiciously and was put under observation, the police officers’ instincts were very accurate.

8.  There are sentencing guidelines for pick-pocketing offences. These guidelines were set down by the Court of Appeal in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1. And as recently as May 2010, the guidelines were reiterated in HKSAR v Chan Mei Yee Carman CACC447/2009, as being very much still applicable today. The guideline is that a 12 to 15-month sentence after trial would be appropriate for a first time offender.

9.  The guidelines say if aggravating factors exist, the starting point will increase. That authority sets out possible aggravating factors to take into consideration. What would be relevant here would be: (1) the fact that the offence was committed in a crowded shopping area where pedestrian traffic is heavy; and (2) where the accused is a repeat offender. And I quote from Ngo Van Huy at paragraph 9, sub-para (4)(d) and sub-para (5). 4(D) says:

“Where the accused is a repeat offender or, worse still, a persistent one, see R v Chiang Pok Wing, HCMA589/96 and HKSAR Huynh Van Dung, HCMA270/2010.”

10.  Sub-para (5):

“We should just elaborate on the aspect of an accused’s previous conviction as being an aggravating feature.  It used to be at one stage sentencing policy that a person would not receive an increase in sentence by reason only of a poor record of like offences.  The passage of the judgment of Penlington JA in Vy Van Kien at 427C and D provides an example of this.  Rather, the accused would simply not receive any discount from which a person of clear record might benefit.  This has now changed.  Sentencing policy in Hong Kong (and, it should be noted, elsewhere in the world including United Kingdom and Australia) recognizes that where there are repeat offences of the same kind, a person’s previous record is likely to be an aggravating feature where this demonstrates in particular either the need to impose a deterrent sentence on the particular accused (the previous ones not having had this effect) or the need to protect the society from criminals like him, see the judgment of Stuart-Moore VP in HKSAR v Chan Pui-chi [1998] 2 HKLRD 830, at 833 and 4.  Where a poor previous record for similar offence exists, a court will be justified in imposing a substantially higher sentence, see Chan Pui-chi at 833 F-I, referring to R v Billam & Others [1986] 82 Cr App R 347.”

11.  After considering the facts, the defendant’s plea, mitigation put forward on his behalf, his previous convictions and following the guidelines set down by the Court of Appeal in 2004, I will take for this offence a starting point of 15 months. I will increase that by 9 months because of the defendant’s repeat offending. I find him to be a habitual criminal. Therefore, the starting point will be one of 24 months.

12.  The defendant is entitled to a discount of one-third for his plea of guilty today. Ultimately, the defendant is sentenced to 16 months; that is a one-year-and-4-month term of imprisonment.