HKSAR v. NG SIU KEUNG

DCCC 221/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 221 OF 2011

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Reasons for Sentence

1.  The Defendant has pleaded guilty to one count of theft, contrary to Section 9 of the Theft Ordinance, Cap. 210, the type of theft commonly referred to as ‘pickpocketing’.

2.  Facts admitted by the Defendant disclose that at about 2230 hours on February 9, 2011, PW1 Mr. Lo Ka was inside the betting centre of the Hong Kong Jockey Club at 2/fl., Argyle House, Nos. 43-49 Argyle Street, Mongkok, watching live coverage of horse racing. At the material time, the betting centre was crowded. Whilst he was watching the live coverage, he suddenly felt the right pocket of his jacket being touched. PW1 turned around and saw the Defendant taking PW1’s mobile phone valued at about HK$1,000 out of PW1’s pocket, and putting it inside his own i.e. the Defendant’s own jacket pocket. PW1 immediately stopped the Defendant and a report was made to the police, who arrived shortly afterwards and arrested the Defendant, who admitted the offence under caution and stated that he stole out of greed and he wanted to sell PW1’s mobile phone for food.

3.  The Defendant is now aged 59 years. He has had 21 previous court appearances, 24 previous convictions, 18 of which are for theft or attempted theft, and 2 for robbery. Of the 18 previous convictions for theft or attempted theft, 7 are specifically recorded as ‘pickpocket’ offences. His previous record dates from 1971. His last conviction for theft, specifically recorded as a ‘pickpocket’ offence, was on 17 March, 2008 when he was sentenced to 10 months’ imprisonment. His last conviction was on 4 August, 2009, when he was fined HK$600 for an offence of unlawful possession of dutiable goods.

4.  It was urged upon me in mitigation by Counsel on his behalf that the Appellant was unemployed at the time of the offence – he is receiving HK$3,090 in public assistance each month, of which he has to pay HK$1,500 for the rent of a partitioned room, which did not leave him enough for his monthly expenses, and that he therefore committed the present offence out of momentary greed. The Defendant had been educated to Primary 6, and worked as a watch apprentice for a few years, and then took up various jobs, usually as a decoration worker. He got married in 1983, but has separated from his wife since 2003 and he now lives alone. They have 2 sons, one aged 21 and studying in university and the other aged 16, who is still in middle school. The two boys live together, and not with the Defendant or his wife, and they receive public assistance each month. Sometimes, he and his wife will give some money to the boys. Counsel has submitted that the Defendant was very remorseful, he had admitted to the police at the scene, and been co-operative, and indicated his intention to plead guilty from the outset.

5.  In directing myself on sentence, I considered the judgement of the Court of Appeal wherein the Court of Appeal laid down sentencing guidelines in respect of offences of theft by pickpocketing, the case of HKSAR v. Ngo Van Huy [2005] 2 HKLRD 1. In delivering the judgment of the Court, Hon Ma, CJHC, as he then was, said:-

“9.  In our view, the following guidelines and principles for this type of offence should now be made clear(and it is to be noted they differ somewhat from the way the Judge approached the matter):-

(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 ease 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 12-15months 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) :  see Vy VanKien & Another [1991] HKLR 422.

(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, [1999] HKEC 1062) Court of First Instance; HKSAR v Ho Minh Cong (unreported, HCMA 547/1999), 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 HKSAR v. Ho Minh Cong (unreported, HCMA 547/1999).  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 group pickpocketing, even without international ramifications, might in future properly attract a starting point of at least 2½ years’ imprisonment”.

(d)  Where the accused is a repeat offender or, worse still, a persistent one :  see R v Chiang Pok Wing, (unreported, HCMA 589/1996, [1996] HKLY 613), Court of First Instance; HKSAR v Huynh VanDung, (unreported, HCMA 270/2001, [2001] HKEC 891), Court of First Instance.

(5)  We should just elaborate on the aspect of an accused’s previous convictions 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 & Another [1991] 1 HKLR 422 at p. 427 C-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 the 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 apparently had this effect) or the need to protect society from criminals like him :  see the judgment of Stuart-MooreV-P in HKSAR v Chan Pui-chi [1999] 2 HKLRD 830, at pp. 833-4. Where a poor previous record for similar offences exists, a court will be justified in imposing a substantially higher sentence :  see HKSAR v. Chan Pui-chi at p. 833 F-I, referring to R v Billam & Others (1986) 82 Cr App R  347.

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10.    In applying these guidelines and principles to the present case, and accepting there has admittedly been a certain amount of double counting in the sentence imposed by the Judge, we are of the view that the correct sentence for the Appellant is 24months’ imprisonment : -

(1)   The starting point is 15months. The circumstances of the theft in the present case puts it at the higher end of the range.

(2)   From that starting point there must, we feel, be a substantial increase on account of the Appellant’sappalling previous record for theft. We have already in paragraph 3 above set out the more notable features of this. The need for a deterrent sentence for this particular person as well as the protection of society dictates that, notwithstanding the fact that what was involved in this case was the theft of a mobile telephone worth $3,680, there should be added another 9months.

(3)   There also exists the aggravating feature that the offence was committed in a crowded area.  The junction of Argyle Street and Sai Yeung Choi Street in Mongkok is a very crowded part of Hong Kong, particularly at that time of the evening.  We would therefore add another 3months to the sentence.

(4)   So far, the sentence for the Appellant comes to 27months.  With 1/3 discount for the plea of guilty, this becomes 18months.  It is at this stage (that is, after a discount has been given on account of the plea) that any enhancement under OSCO should be made : - See HKSAR v TamWai Pio [1998] 4 HKC 291, at p. 298.  In other words, if any enhancement is to be made, it should be made at the final stage of the assessment.”

Here, no OSCO application has been made.

6.  I take as a starting point 15 months’ imprisonment. The circumstances of the offence in the present case puts it at the higher end of the range. From that starting point, there has to be an increase on account of the Defendant’s appalling record, the notable features of which I have set out in paragraph 3 above. The need for a deterrent sentence for this particular Defendant as well as the protection of society dictates the starting point of 15 months’ imprisonment be further increased. Mr. Au for the Defendant has submitted that the Defendant herein can be distinguished from the Appellant in Ngo Van Huy’s case, in that in Ngo’s case, the Appellant was aged 34 years, and had committed 17 theft offences over a period of 15 years, whereas the Defendant herein is aged 59 years, and has committed 18 previous theft and attempted theft offences over a period of 25 years. The Court of Appeal in Ngo’s case imposed an additional 9 months’ imprisonment because of the Appellant’s poor criminal record. Counsel has submitted that there should be a lesser increase here. He has referred also to the case of HKSAR v. Tam Yuen Tong, HCMA 1182/2006, wherein the Appellant, aged 73 years, on appeal for 2 theft ‘pickpocket’ offences was labelled by the magistrate as a persistent offender, with 24 previous theft offences as well as other offences including burglary and robbery between 1949 and 2006. The magistrate had taken a starting point of 15 months’ imprisonment on each count and enhanced this by 6 months’ to reflect the poor criminal record of the Appellant, before giving him the usual one-third discount for his plea, namely 14 months’ imprisonment on each count, of which 8 months’ was ordered to be served consecutively, totalling 22 months’. The appeal against sentence was dismissed. Counsel herein therefore argues that the addition for the Defendant’s poor record herein should be less than 9 months’. In my view, a mathematical approach cannot be taken and each case must be viewed on its own facts. I consider that the starting point of 15 months’ should be enhanced to 24 months’ to reflect the Defendant’s poor criminal record.

7.  There also exists the aggravating feature that the offence was committed in a crowded area inside an off-course betting centre on a horse-racing night when those inside were busy watching the live coverage of the horse-racing for that night that was provided at the off-course betting centre. I would therefore add another 3 months to the sentence. That would make a total of 27 months’ imprisonment as a starting point. Save for his plea of guilty, there is little mitigation of weight before me. I give him the usual discount of 1/3 for his plea and sentence him to 18 months’ imprisonment on the charge.