HKSAR v. GUO MINGJIAN AND ANOTHER

DCCC 964/2023

[2024] HKDC 846

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 964 OF 2023

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REASONS FOR SENTENCE

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1.  The defendants have pleaded guilty to a joint charge of theft. The defendants are both Chinese citizens, resident outside of Hong Kong who entered Hong Kong on two-way entry permits, given the permission to stay in this jurisdiction for seven days. We can see they entered within a short period of each other on 9 August 2023 from the same control point.

2.  The defendants then committed the offence in question today on 10 August 2023.  The location of the offence is an area near Plaza Hollywood in Diamond Hill in Kowloon near the Tai Hom Road bus stop.  The defendants were seen by police officers in that area and they were seen to be acting suspiciously and they were followed by the police officers.  Eventually they were seen to go to a footbridge at the junction of Lung Cheung Road and Tai Hom Road in Wong Tai Sin in Kowloon which is nearby and went to the top of the footbridge.  Now at that time they were seen to be studying another man who was carrying a rucksack and it is clear from the facts agreed by the defence they acted jointly in order to commit an act of theft by way of pickpocketing by way of taking the wallet from the black rucksack of the male.  The wallet was in fact returned and a $100 banknote was taken out.  

3.  The defendants were eventually followed by police and arrested shortly after and the $100 banknote seen to be removed from the wallet was found on the 1^st defendant from his right front trouser pocket.  Now both defendants made video-recorded statements afterwards and it is clear from there that the two defendants are acquainted and are friends with each other and those facts agreed by the defendants support the charge against them and I convicted them accordingly.

4.  As far as their mitigation is concerned, it is clear that both defendants are visitors here and they are both of clear record.  For more detail on the 1^st defendant is that he is 54 years old, born within China, married and his wife works as a factory worker.  He is unschooled, I am told, has worked as a factory worker himself and has difficulties with his kidney, underwent an operation in 2015.  He is on medication which is being given in Hong Kong since being on remand.

5.  As far as the 2^nd defendant is concerned, a similar background.  He is 46 years old, lives with his family in Hainan Island, married with two children.  He is the sole breadwinner of his family, only completed primary education.  He, as I said earlier, is of clear record.

6.  Both defendants have indicated a plea from the early stage and they are both of clear record and the theft itself only involves a small sum of money.

7.  I have been referred to various authorities in respect of sentencing, primarily that of HKSAR v Ngo Van Huy which is found at CACC 107/2004 which sets out a basis for the sentencing of cases of pickpocketing.  I will not go into the details of that case but suffice to say that the starting point for sentence should normally range between 12 to 15 months’ imprisonment and be an immediate sentence of imprisonment.  The case itself sets out various aggravating factors, some of which may be relevant to sentencing today.  I have in this case to consider three possible aggravating factors.  Firstly, is the area a crowded area or an area that is busy; secondly, is it a joint enterprise offence, which it clearly is, and thirdly, that the defendants come to Hong Kong primarily to commit this offence or offences of this nature.

8.  As far as the first factor is concerned, I find there is sufficient information in the Admitted Facts to establish that this is an area which is busy, possibly crowded, it is also near a transport interchange so that clearly is an aggravating factor that I can take into account.  The second factor, the defendants clearly acted together, that is not disputed, that is also an aggravating factor.  And the third factor being that defendants travelled to Hong Kong, travelling to Hong Kong the day before they committed this offence.  They clearly came here together and it would be naïve for me to assume they did not come here to commit offences of this nature or certainly an offence of this nature.  So I consider overall there are three aggravating factors to consider.

9.  I must firstly now consider the appropriate starting point before I add on the aggravating factors.  As I have said earlier, sentencing should range between 12 to 15 months’ imprisonment.  I consider, given the defendants are of clear record and the amount of money taken was small, I shall take an initial starting point of 12 months’ imprisonment for both defendants.  I shall then add in the three aggravating factors which lead to a total of an additional 9 months’ imprisonment to be added to the starting point which leads to a sentence at this stage of 21 months’ imprisonment.

10.  The defendants are each entitled to a full one-third discount for their pleas of guilty.  That leaves a final sentence of 14 months’ imprisonment and that is the sentence I will impose for both defendants.