HKSAR v. LI ZHOUQI AND ANOTHER

DCCC 1229/2023

[2024] HKDC 1184

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1229 OF 2023

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REASONS FOR SENTENCE

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1.  D1 & D2 pleaded guilty before me to one joint charge of Theft, contrary to section 9 of the Theft Ordinance, Cap 210. Particulars are that they, on 8 August 2023, outside Shop No 26, Ground Floor, Kam Pik House, Choi Hung Estate, No 8 Luk Lau Avenue, Wong Tai Sin, Kowloon, in Hong Kong, stole one iPhone, property belonging to Wong Kam Yi.

Facts admitted by D1 and D2

2.  D1 and D2 were two-way permit holders.

3.  On 8 August 2023, at about 1609 hours, PW1 Wong walked past Shop No 26 (“the Shop”)  at G/F of Kam Pik House, Choi Hung Estate, with her 2-year-old daughter in her arms.  D1 and D2 followed PW1 from behind.  D1 approached PW1 from her back, squatted down a little, and extended his right hand towards PW1’s waist, during which time D2 held an opened umbrella while following D1.  There was no rain at the time.

4.  Shortly afterwards, PW1 and daughter arrived home at Kam Pik House.  PW1 discovered that her iPhone (purchase price $10,199)  which was previously tied to a cross-body strap and placed near the back of her waist became missing.

5.  At about 1938 hours, at the junction of Choi Hung Road and Shatin Pass Road, plain-clothes police found D1 and D2 suspicious and followed them.

6.  When both parties reached somewhere near Wong Tai Sin Police Station, D1 and D2 discovered the plain-clothes police officers and started to run.  The officers revealed their identity and gave chase.  D1 and D2 split their ways. D2 threw away a black rucksack at the road nearby.  The duo were eventually intercepted and subdued by the police.

7.  Upon search, the following items were found in D1’s cross-body bag:-

(a)  HK$3,007;

(b)  RMB986 yuan;

(c)  One purple iPhone (not the stolen property);

(d)  One piece of tin foil; and

(e)  One pair of black sleeves.

8.  Upon search, the following items were found in the black rucksack thrown away by D2:-

(a)  HK$1,590;

(b)  RMB2 yuan;

(c)  One black mobile phone;

(d)  One dark-blue foldable umbrella;

(e)  One sheet of tin foil;

(f)  One bag of masks;

(g)  One pair of white sleeves;

(h)  One pair of green sleeves;

(i)  One white jacket;

(j)  One pair of short pants;

(k)  One underwear; and

(l)  One T-shirt.

9.  During cautioned VRI, D1 stated that:-

(a)  He was unemployed; he came to Hong Kong on 5 August 2023 with his friend D2; they came for sightseeing; he (D1)  had come to Hong Kong once in July 2023;

(b)  On 8 August 2023, at about 1609 hours, he was with D2;

(c)  He denied stealing an iPhone from PW1; and

(d)  He ran because he thought the police officers were triad members about to hit him.

10.  During cautioned VRI, D2 stated that:-

(a)  On 5 August 2023, he came to Hong Kong for sightseeing with his friend D1;

(b)  On 8 August 2023, he and D1 exited from Choi Hung MTR station, took a bus to reach somewhere; from there, they walked around;

(c)  He had not gone to the shop at Kam Pik House;

(d)  He did not steal an iPhone from PW1; and

(e)  He ran because he saw many people chasing him.

11.  D1 and D2 now admit they stole, by pickpocketing, an iPhone belonging to PW1.

12.  The stolen iPhone was not recovered.

Criminal records

13.  D1 has no previous convictions in Hong Kong.

14.  D2 has no previous convictions in Hong Kong.

Antecedents

15.  D1 is aged almost 28 (almost 27 at the time of the offence), educated to lower secondary level in the Mainland, unemployed in Hong Kong.  He has no fixed address in Hong Kong.

16.  D2 is aged 28 (27 at the time of the offence), educated to primary 3 level in the Mainland.  He operated a convenience store in the Mainland.  He has no fixed address in Hong Kong.

Mitigation

D1

17.  Mr Freddy Woon of counsel assigned by the Director of Legal Aid mitigated on behalf of D1.  The following is a summary of the mitigation submissions.

18.  D1 was a visitor from Hainan at the time of the offence.  He arrived on 5 August 2023 by land crossing.  D1 was a casual decoration worker earning about RMB6,000 per month on average.  He was living with his family members in the Mainland.

19.  D1 came with D2 on 5 August for sightseeing.  On day of offence, while sightseeing around Hong Kong, D1 decided to get off the train at Choi Hung Station, intending to explore the area.  He felt thirsty on getting off; so he walked towards Choi Hung Estate intending to purchase a drink.  While he was looking around for a drink, he came across PW1 and noticed she was carrying a mobile phone strapped near her waist.  Out of momentary greed, she stole it with the assistance of D2.

20.  D1 has a clear record.  He pleaded guilty showing remorse.  He is willing to pay compensation to PW1 in the amount of $3,000.

21.  Mr Woon invited the court to accept that D1 came to Hong Kong solely for sightseeing and not for committing illegal activities; that D1 was not part of an organized and professional ring of thieves.

22.  Mr Woon submitted that the theft did not occur at a crowded place where the pedestrian traffic would be heavy; nor were equipment used to facilitate the theft.

23.  Mr Woon referred to the authority of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 on sentencing in pick-pocketing cases.

24.  The court is asked to pass a lenient sentence.

D2

25.  Mr Yuen Siu Kei of counsel assigned by the Director of Legal Aid mitigated on behalf of D2.  The following is a summary of the mitigation submissions.

26.  D2 is single and has received education up to primary 3.  He resided with his parents and siblings in Hainan.  D2 has a clear record in PRC including Hong Kong.

27.  D2 had operated a ministore in Hainan.  Business was making a loss, so it was closed down about 3 months prior to the offence.  D2 became unemployed and faced financial difficulties.  D2 committed the offence due to financial reasons.

28.  Mr Yuen referred to the District Court case of HKSAR v Wang Huaifeng & Anor [2019] HKDC 1266.

29.  Mr Yuen submitted that in the present case the location of the offence was not crowded at all.  He urged the court to adopt a starting point of not more than 24 months.

30.  Mr Yuen reminded the court to grant D2 the customary 1/3 sentencing discount to reflect the latter’s guilty plea.

31.  D2 is willing to compensate the victim out of the $1,590 found from him.

Sentence

32.  I have seen the 7 screen-captures of the locus in quo produced by the prosecution without objection from the defence.

33.  The fact that D1 and D2 acted in concert aggravated the offence.  The fact that it was a mobile phone (unrecovered)  that was stolen further aggravated the offence because, as is common knowledge, a mobile phone contains a large amount of private information and means of access to bank accounts and the like.  A loss, even if only temporary, will cause huge inconvenience to the owner.  In this case, the loss was permanent.

34.  From the evidence, it is not clear who between D1 and D2 was the leader or the mastermind.  So the sentence will be the same for them both.

35.  There is insufficient evidence to show that the duo came to Hong Kong with a view to committing an offence.

36.  Bearing in mind the guidelines for a first offender laid down in Ngo Van Huy (supra), I adopt a starting point of 15 months’ imprisonment.  For the dual aggravating factors aforesaid, I increase that starting point by 6 months to arrive at the final starting point of 21 months.

37.  Regarding both defendants’ offers to compensate the victim partially for her loss out of the monies found on them, I take them with a pinch of salt. The defendants were arrested about 3 and a half hours after the theft in the vicinity.  The stolen iPhone was not recovered.  The time was enough for them to have sold it for cash.  The irresistible inference from all the circumstances is that they have sold it and that the Hong Kong Dollars on them were the proceeds of sale or part thereof.  As such, they have no right to the monies and the latter ought to be returned to PW1 anyway.

38.  D1 and D2 pleaded guilty in good time earning for themselves the customary 1/3 discount in sentence.  There are no other mitigating factors of weight to justify another reduction in sentence.

(D1 & D2, please stand)

39.  The sentence for D1 is 14 months’ imprisonment.

40.  The sentence for D2 is 14 months’ imprisonment.