HKSAR v. SUEN PING

 DCCC891/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 891 OF 2009

----------------------

----------------------

-------------------------------

Reasons for Sentence

-------------------------------

The charge and the course of the trial

1.  The defendant appeared before me yesterday facing a single charge of attempted theft by pickpocketing.  He pleaded not guilty to the charge.  As a result, the civilian victim in this case, one Yeung Kam-shing, a retired 56-year-old cleaner who was currently hospitalised, had to obtain leave from his doctor to allow him to be temporarily discharged from the hospital in the forenoon yesterday for the purpose of giving evidence.

2.   Mr Yeung was in the witness-box for nearly 3 hours yesterday with the majority of the time being vigorously cross-examined by the defence counsel.  The identity of the defendant was also disputed. 

3.  This morning the defendant applied to me for plea to be taken again and this time he pleaded guilty.  After his full admission to the Summary of Facts, the defendant was duly convicted as charged.

4.  The fact of this case is simple enough.  At about 4 pm on 14 June 2009, in a crowded market at the junction of Nelson Street and Reclamation Street, Mong Kok, Kowloon, PW1 was buying food in the vicinity and at that time he had five HK$20 banknotes in his trousers pocket.  The defendant suddenly stretched his hand into PW1’s right trousers pocket.  PW1 felt the touch and he looked down and found that the defendant had one hand holding a white plastic bag at about 3 to 4 inches in front of his right trousers pocket and his another hand inserting into the pocket.

5.  PW1 immediately held the wrist of the defendant and accused him with pickpocketing.  PW1 pulled the defendant’s left hand out from his right trousers pocket.  The defendant tried to flee but was subdued by PW1 who later handed him over to the police.

6.  When giving his evidence, PW1 said that there were many people in the market at the time of the offence though he accepted that it was not as crowded as usual. 

Mitigation

7.  The defendant is now 51 years of age.  He is married and he lived with his wife in Hong Kong who only came to Hong Kong from the mainland recently.  They had a son and a daughter both 9 years old who are now living in China.

8.  The defendant has received education up to primary level only and he was unemployed prior to his arrest.  According to his antecedents, he had 58 criminal records.  He had 9 similar pickpocket convictions and 21 convictions of theft or attempted theft.  There were also other serious convictions involving, as it were, two trafficking in dangerous drugs convictions and also one blackmail conviction. 

9.  He is now currently serving a 10 months’ imprisonment sentence in relation to a similar pickpocket case which took place on 9 July 2009 (see item 45 of the criminal record summary).

Principles of sentence - sentencing pickpocket

10.   In a judgment which was published by the Court of Appeal only yesterday on 25 November 2009 (HKSAR v Dang Van Tuan also known as To Quang Tuan CACC 187/2009), the Court of Appeal is of the view that pickpocketing is a serious and most irritating offence.  Apart from the financial loss, the victims of pickpocketing often suffer serious inconvenience and frustration resulting from the loss of identity documents and other personal items.  The offence is prevalent and easily committed by unscrupulous and often persistent offenders who must be deterred. 

11.  In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, a case which was both relied by the prosecution and the defence, the Court of Appeal laid down the guideline sentence of 12 to 15 months for pickpocketing after trial for a first-time offender.  A heavier sentence would be imposed where there were the presence of aggravating factors which included, inter alias, (i) the offence took place in a place which the public is at particular risk such as crowded places like the MTR or racecourse, crowded shopping areas where the pedestrian traffic is heavy; and (ii) repeat or persistent offending. 

12.  Looking at his record, the defendant is clearly a recidivist offender.  A defendant who has not been deterred by a large number of previous sentence of imprisonment may receive a longer period of imprisonment for a particular offence than a defendant who has clear record or who has been in prison only on a few occasions.  In HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, Stuart-Moore VP said:

“Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he has already served the penalty, the constant repetition of this applicant’s trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned.  The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest.”

The sentence I pass

13.  Based on the observations in Ngo Van Huy (supra.) and Chan Pui Chi (supra.), I find that there are altogether two aggravating factors in this case, namely, it took place in a crowded location in Hong Kong; and, the defendant is a repeated offender.   In this case I take a starting point of 15 months.  From that starting point, there should be added also another 10 months on account of the defendant’s appalling previous record for theft and pickpocketing, in particular.  Also, another 3 months would be added because the case was committed in a busy marketplace in Mong Kok. 

14.  The fact that it was less crowded than it previously was, according to PW1, was, in my view, irrelevant.  The total period of sentence before the discount for his plea is therefore one of 28 months.  Because of his late plea, especially only when the only civilian witness has finished giving his evidence, but after taking into the consideration that there are still three police officers yet to testify and the defendant had indicated that he too may give evidence, I would still give him a discount for plea, but I only prepare to exercise my discretion to allow a one-fourth discount in the circumstances.  The resulting sentence after the discount is therefore 21 months. 

15.  Lastly, counsel for the defence urged me to take into account that the defendant was currently serving a 10 months’ sentence since 10 July this year and to approach the sentence as if the current offence as well as the previous offence has been heard together, citing Tsang Chiu Man [1996] 3 HKC 94.  I observed that by pleading guilty the defendant was in fact committing the previous offence while on police bail for the current offence which was clearly an aggravating factor. The fact that the previous offence was dealt with separately before he was convicted in the present offence meant that the magistrate in sentencing the previous offence had not increased the sentence on account of his commission of the present offence whilst on bail.  In the circumstances I therefore decline to order any part of the sentence in relation to the previous offence to run concurrently with the present sentence.  The 21 months’ sentence in this case therefore will be served consecutively with his current sentence which is a totally separate and distinct offence.