HKSAR v. JIANG BIN AND OTHERS

DC cC 301/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.301 OF 2012

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REASONS FOR SENTENCE

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Introduction

1.  D1 to D3 were jointly charged with a single offence of Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  The charge was that the three defendants, on 29 February, 2012, on the escalator E12 inside the MTR Tsing Yi Station, New Territories, stole one wallet, one passport and two red packets total containing cash HK$200 from a Malaysian Chinese male (PW1).  They all pleaded guilty to the charge and were represented by their solicitor, Miss Cindy Chan assigned by the Director of the Legal Aid.

The Facts

2.  It was a pickpocketing case. The relevant facts are simple and straight forward and I shall largely adopt the summary of facts which has been agreed by all the defendants. On 29 February, 2012 at about 1705 hours, a party of four police officers were conducting anti-crime patrol in plainclothes inside the MTR Hong Kong Station when they spotted the defendants acting in a suspicious manner inside the lobby and kept looking at the items carried by the passengers. The police officers therefore put the defendants under observation. The three defendants later boarded a train bounded for the Tung Chung direction and the four police officers followed them on board to the Tsing Yi Station. When the three defendant alighted the train compartment at 1724 hours and took the escalator down the platform, D2 gestured to the other two defendants and directed their attention to PW1 standing at their front and carrying a luggage with a handbag placed on top. D1 then walked up to the back of PW1. At the same time, D2 was shielding the back of D1 whereas D3 was on D1’s right-hand side. D1 then unzipped the handbag of PW1 and stole a wallet from it which contained the subject-matters of the stolen properties in the charge. Upon seeing this, the police officers intercepted the defendants inside the MTR Station. During the course of arrest, D1 put up a fierce struggle and he dropped the said wallet onto the floor. PW1 later came forward and confirmed his ownership of the stolen properties to the police and fortunately, he suffered no loss during the incident.

3.  After the arrest, both D2 and D3 denied the offence under caution. D1 admitted under caution that he committed the offence out of momentary greed and asked for a chance.  Records kept by the Immigration Department showed that D1-D3 entered Hong Kong together on the strength of Two-way Permits on 26 February 2012 and they were allowed to stay in Hong Kong for 7 days until 3 March 2012.

Criminal Records and Mitigations

4.  Each defendant has a clear record in Hong Kong. Their personal circumstances are unremarkable. D1 is aged 22 whilst D2 is 34 and D3 is 33 respectively. They all came from the Mainland. While D2 is still single, D1 is living with his girlfriend and a two year old son and D3 is living with his wife and three sons together. I was told by Miss Chan that they committed the present offence due to insufficient income and financial hardships. D1 and D3 have each written a letter of mitigation to the court. I am not going to refer to the content of the letters. Suffice it to say that they have all expressed regrets and remorse for their misdeeds and they all referred to their family backgrounds and urge the court to impose a lenient sentence so that they can go back to their families as soon as possible.

Sentencing Considerations

5.  The sentencing guidelines for pickpocketing offences were those laid down by the Court of Appeal in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1. The judgment was handed down 28 September 2004. What the court said was this:

“9. In our view, the following guidelines and principles for this type of offence should now be made clear ....: -

(1) Theft by pickpocketing can be regarded as the type of offence that society severely and rightly condemns. Although in many cases, the value of the items stolen may not amount to much, the significant degree of inconvenience, the relative case with which it can be effected by a direct invasion of or about the person and privacy of those minding their business in public places, and the adverse reputation that this type of crime collectively brings upon a city makes this offence a particularly serious one. It is one which attracts, justifiably in our view, a heavy penalty.

(2) The guideline sentence of 12-15 months after trial is therefore appropriate for a first time offender. This is an immediate custodial sentence, not a suspended one.

(3) Of course, account must be taken of the existence of any aggravating, or particular mitigating, features before the court.

(4) Aggravating features include : -

(a) The presence or use of a weapon (such as a razor-blade or knife used to cut open, say a handbag or, worse still, intended to be used on the victim) ....

(b) Where the offence is committed in a place in which the public is at particular risk, such as crowded places like the MTR or the racecourse, crowded shopping areas where the pedestrian traffic is heavy.

(c) If the accused commits the offence in conjunction with another, the sentence should be higher. Where he is part of an organized and professional ring of thieves a substantial increase in sentence may be called for : see HKSAR v Rang Zhi Tai and Another, unreported, HCMA 7/1999, 25 March 1999, Court of First Instance; HKSAR v Ho Minh Cong, unreported, HCMA 547/1999, 23 September 1999, Court of First Instance. For example, where professional pickpockets from overseas (whether individually or in a group) come to Hong Kong to carry out this type of activity (no doubt tempting owing to the number of crowded places here), an increased sentence can be imposed : - see R v Saldana Alca Jose and Another, unreported, CACC 655/1996, 19 August 1997. In giving the judgment of the Court of Appeal, Patrick Chan J made the following remarks about organized pickpocketing :

"We take this opportunity to indicate that in our view, because of their seriousness, organized crimes of this nature including grouppickpocketing, even without international ramifications, might in future properly attract a starting point of at least 2 1/2 years' imprisonment".

(d) Where the accused is a repeat offender or, worse

still a persistent one ...."

6.  There can be no question but that in this case, the normal starting point of 12 to 15 months is susceptible to significant enhancement by reason of the presence of a number of further aggravating features.

7.  In HKSAR v Chan Mei Yee [2010] 4 HKLRD J5, the Court of Appeal allowed the appeal of sentence by a pickpocket who committed the offence with another defendant in a busy street. The appellant was convicted after trial. The court set aside the sentence of 39 months' imprisonment imposed by the court below and substituted a sentence of 30 months' imprisonment. In the judgment, the Court of Appeal has especially referred to the following two cases to support its conclusion: (para 20-23)

“20. In HKSAR v Dang Van Tuan [2010] 1 HKLRD 330, two men targeted a female victim in Metro Harbour Plaza, Tai Kok Tsui and stole a wallet from the lady's handbag, containing $80, an Octopus card and an identity card; all of which was recovered. The applicant - one of the two men - was aged 38 years and had some 10 convictions for theft and attempted theft and others for drug offences. Although he was originally from abroad, he had lived in Hong Kong for nine years. What the judge at first instance did in that case was to reach, from the 12 to 15 month starting point, a sentence of three years before giving credit for the plea of guilty. The Court of Appeal referred to Ngo Van Huy and other cases, noted that the offence in the instant case was planned, and had been committed in a crowded shopping mall and noted as well the applicant's criminal record. It noted further that some of the other cases to which it had been referred were cases where there had been an enhancement of sentence under the Organised and Serious Crimes Ordinance. The Court concluded that the three-year point reached by the judge before mitigation was manifestly excessive and that a more suitable point would have been 30 months' imprisonment, before deduction for the plea of guilty.

21. Once again, it is difficult to see how one can justly distinguish the facts of Dang Van Tuan from the present case.

22. Then there is HKSAR v Liao Mei & Ors CACC 432/2004, 17 November 2004, unreported. That was a case of a professional gang of thieves who came to Hong Kong from Guangdong Province in order to commit these offences. They crowded around the young woman one night at an empty station, boarded a train with her and, while standing close to her on the train, removed a mobile telephone from her jeans pocket. The trial judge took a starting point of 30 months' imprisonment, reduced that by one-third to reflect their pleas of guilty and enhanced that figure by 50% under the Organised and Serious Crimes Ordinance, on the basis of the prevalence of the offence. The Court referred to Ngo Van Huy and to the reference in it to Saldana, stating that Saldana was approved by Ma CJHC in Ngo Van Huy in his reference to an "organised and professional ring of thieves". The 30 months taken by the judge before the deduction for the plea of guilty and before enhancement under the Organised and Serious Crimes Ordinance was considered to be appropriate.

23. That case, in our judgment, was more serious than the present for obvious reasons: it was a case of a professional gang coming to Hong Kong to steal and did so in circumstances in which they had placed the victim in a particularly vulnerable position. On one view, it may be said that the culprits compared favourably with this applicant by reason of their absence of previous convictions; but, as the Court in that case remarked, that is to embrace a degree of naivety and unreality; for, they said, "given the obvious sophistication of the operation, it would be naïve to believe this was the first time they had picked anyone's pocket."

8.  The facts of the present case is very similar to Dang Van Tuan (supra.) and Liao Me i(supra.). Also, given the “obvious sophistication of the operation” in this case, the fact that the three defendants each has a clear record will not assist them as far as the aggravations are concerned.

9.  The prosecution also relied on HKSAR v Tan Hong Sheng CACC 238/2005. That is also an authority where the Court of Appeal has affirmed the adoption of a 30 months’ imprisonment passed by the lower court in a pickpocket case with the presence of similar aggravating features. Accordingly, I shall similarly adopt 15 months as the starting point and then enhance the sentence of each defendant by another 15 months to take into account the aggravating features in this case which includes: (1) that the offence was committed in MTR station when the public was at particular risk; (2) that the offence was carried out by three persons; (3) that they specifically came to Hong Kong to commit crimes since the defendants committed the offence only 3 days after they arrived in Hong Kong from the Mainland; and (4) that the offence was planned with some degree of sophistication.

Order

10.  The total sentence on each defendant before discount is therefore 30 months’ imprisonment. The sentence is further reduced by 1/3 to reflect their guilty pleas. Each defendant is therefore sentenced to 20 months’ imprisonment accordingly.