HKSAR v. TANG GAOHUI AND OTHERS

DCCC889/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 889 OF 2011

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Reasons for Sentence

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Introduction

1.  D1 to D3 came before me this afternoon, facing a total of five theft charges, contrary to section 9 of the Theft Ordinance, Cap.210.

2.  They pleaded guilty to all of the respective charges and admitted the amended summary of facts.

3.  Accordingly, D2 was convicted on Charge 1 and Charge 2, while D3 was convicted on Charge 3 and Charge 4.  I also convicted D1, together with D2 and D3, on Charge 5.

The facts

4.  The arrest of the three defendants was as a result of the report of a theft of his iPhone by the victim of Charge 5 on 12 June 2011 when he was travelling on a MTR train at Prince Edward station.

5.  According to the summary of facts, a male dropped a coin on the floor of the train and knelt down to pick it up but the male suddenly held the victim’s leg.  Meanwhile, another male took the victim’s phone from his right front trousers pocket.

6.  After the report was made, the police officers viewed the CCTV record covering the platform of Prince Edward MTR station and spotted D2 and D3 acting furtively and captured their images for reference and then started to conduct anti-theft patrol at the Kowloon Tong MTR station.

7.  Later they discovered D2 and D3 walking together with D1 at the platform of the Kowloon Tong MTR station and they kept looking at the passengers around them.

8.  The officers then put the three males - that is, D1 to D3 - under observation and the three males boarded a train from Kowloon Tong to Lo Wu direction.  The officers then followed them to the train and subsequently saw D1 to D3 alight at Sheung Shui MTR station where they were intercepted for enquiry and search.

9.  As a result of the search, the police found the iPhone of the victim in Charge 5 from the trousers pocket of D1.  They also found the two mobile phones of the victims of Charge 1 and Charge 2 from the trousers pocket of D2 and the other two mobile phones of the victims of Charge 3 and Charge 4 from the trousers pocket of D3.

10.  The three defendants were arrested and cautioned.

11.  The facts of Charge 1 and Charge 4 were straightforward and unremarkable.

12.  Each victim was travelling on the MTR train in the afternoon of 10 June and 12 June respectively when they discovered that their mobile phones, originally kept in their trousers pocket, were missing after they alighted from the train.

13.  The facts of Charge 2 and Charge 3 were, however, strikingly similar to the facts of Charge 5 when in each case, inside an MTR train, a male suddenly squatted down and held the victim’s leg.  Meanwhile, someone stole the mobile phone kept in the victim’s trousers pocket and in both cases, they only discovered that after they alighted the trains.

14.  Fortunately, all the mobile phones in relation to the above five victims were recovered after the arrest of these three defendants.

15.  Under subsequent caution, only D3 admitted stealing the mobile phone in Charge 3 and Charge 4.  He said that he committed these offences alone and the other two defendants were not involved.

16.  The other two defendants denied the offences and claimed that the mobile phones found on their possession were bought from a second-hand phone dealer on the street and they had no receipt.

Defendants’ background and mitigations

17.  According to the summary of the facts, D1 to D3 are two-way permit holders and they travelled to Hong Kong together and entered Hong Kong at the same time on 10 June 2011.

18.  D1 to D3 each has a clear record in Hong Kong.

19.  D1 is now aged 45.  According to the antecedents statement, he is a merchant.  He is married and his wife is a hawker and they have a son aged 15 who is now studying as a student.  He also has an aged mother of 80 years old.

20.  D2 is now aged 41.  Mr Lee, his lawyer, informed the court that he is a security guard by occupation.  He is also married.  The wife is a housewife and the son is only 7 years of age.  The parents are both in their seventies and are also looking for his support.

21.  D3 is 32 years of age.  He is also married and they have a son of only 1½ years old and according to Mr Lee, D3 is a driver by occupation.

22.  In mitigation, Mr Lee had submitted on behalf of D2 and D3 a letter of mitigation written by each defendant.  I am not going to refer to the details of the letters, suffice to say that both defendants ask the court to be lenient and to grant them the chances to reform.

23.  Both defendants would like the opportunity to be reunited with the family in the Mainland as soon as possible and ask the court to impose a lenient sentence.

Sentencing considerations

24.  Pickpocketing is, of course, a serious and most irritating offence.  Apart from the financial loss, the victims of the pickpocketing often suffers serious inconvenience and frustration resulting from the loss of personal items.

25.  The present case involved, as it were, the popular smart mobile phones of expensive models such as iPhones, which nowadays have functions akin to a personal computer which often contain personal data and information such as e-mail, as well as photographs and video images which simply cannot be replaced if the same has not been backed up and saved elsewhere.

26.  The offence, prevalent and easily committed by unscrupulous and often persistent offenders, must be deterred.

27.  The offences were clearly planned when it was committed in a crowded MTR train compartment, which in itself is also an aggravating factor.

28.  Mr Lee, in his mitigation, had referred the court to the case of HKSAR v Chan Mei Yee Carmen, CACC447/2009 when the Court of Appeal had reviewed a number of recent authorities on the pickpocketing offences.  I shall refer to this case later.

29.  Besides this case, I have also considered a case of HKSAR v Wu Chi Kong, CACC 3447/2006, a Chinese judgment from the Court of Appeal.  The appellant in that case pleaded guilty to attempted theft. Like the present case, he and the two other persons attempted to steal from a backpack that the victim carried.  The offence was committed at noontime in a crowded public place in Mong Kok.

30.  The trial judge adopted a starting point of 30 months’ imprisonment and reduced the term to 20 months on account of the plea.

31.  I cited this case because the Court of Appeal held that the offence plainly was an organised one.  The two accomplices tried to distract the victim’s attention and the appellant then committed the offence.

32.  This was very similar to the present case when the man suddenly knelt down in the pretence of dropping a coin and then held the victim’s leg while his mobile phone was being snatched or stolen.  The Court of Appeal said in Wu Chi Kong that this was an aggravating factor. They also opined that the starting point adopted by the trial judge was not manifestly excessive, and the appeal was dismissed.

33.  Returning to Chan Mei Yee Carmen, this is by far the most recent authority on the sentence of pickpocket by the Court of Appeal.  Stock VP referred to the sentencing guidelines for pickpocketing offence as laid down in the case of HKSAR v Ngo Van Huy, [2005] 2 HKLRD 1 and after reviewing a number of recent authorities, observed that:-

“One commences with a starting point of 15 months’ imprisonment for the attempted theft itself. One then addresses aggravating features. Taking into account that the offence took place in a busy street, that there was more than one offender, and the many previous offences which lie at the applicant’s door, it seems to us an overall sentence of 30 months’ imprisonment is appropriate.”

34.  In the judgement of Chan Mei Yee Carmen, another case HKSAR v Tan Hong Sheng CACC238/2005 was also referred to.  The appellant in that case also committed the offence with two other pickpockets.  The subject matter was also a mobile telephone from the handbag of a lady.  It was committed near the Kowloon Star Ferry Pier, also a crowded public area.

35.  The judge took a starting point of 12 to 15 months’ imprisonment, and after he had identified the four aggravating features, he adopted a starting point of 2½ years’ imprisonment for a group who had come from China or Mainland with the specific purpose of operating as a team to steal from unsuspecting victims.

36.  The Court of Appeal had approved the starting point adopted by the trial judge.

37.  Of significance was the fact that, like the three defendants in this case, the appellant in that case also had a clear record but the Court of Appeal had noted that, as the appellant was part of an organised and professional ring of thieves so it was under these considerations that, even with no previous criminal record, the sentence was said to be correct when the starting point of 2½ years was adopted.

38.  I will first deal with the sentence in Charge 5.

39.  In Charge 5, D1 to D3 were jointly charged.  I judge that they were acting in concert and while they might be playing different roles during the thefts, their criminality was of the same.

40.  Similarly, I will adopt 15 months as a starting point and, applying the above authority, I take into account the presence of the following aggravating features:

(1) that the offence was committed in crowded places such as MTR train;

(2) that the offence was carried out by three persons;

(3) that the offence was organised, well-planned and quite professional; and

(4) that the offence was committed by a group of Mainlanders who came to Hong Kong together at the same time with a view to commit pickpocketing offences.

41.  The overall sentences will, therefore, be increased from 15 months to 30 months and reduced by one-third on account of their pleas.

42.  Each defendant will, therefore, receive a sentence of 20 months in this charge.

43.  As said, the facts of Charge 2 and Charge 3 were similar to that of Charge 5, although D2 and D3 was the only defendant in the respective charge.

44.  According to the facts, the same modus operandi in Charge 5 was repeated in these two charges.

45.  In each case, the offence plainly was an organised one as the male who squatted down and held the victim’s leg tried to distract the victim’s attention while another committed the offence.  It is not clear from the facts whether D2 and D3 was the man who held the victim’s leg or the person who finally took away the mobile phone from the victim’s trousers pocket, but in my view, it does not really matter as far as the criminality is concerned.  I would also adopt 30 months as a starting point in each of the cases.

46.  After the one-third discount, D2 and D3 will each be sentenced to 20 months on Charge 2 and Charge 3 respectively.

47.  Finally, as for Charge 1 and Charge 4, the facts did not disclose any organised or planned offence committed by two or more persons.

48.  As a result, in each case, I shall treat it as only a simple pickpocket offence committed by a single defendant in a crowded MTR train compartment, and I shall adopt a lower starting point of 21 months.

49.  After one-third discount, D2 and D3 will each receive 14 months’ imprisonment on these two charges.

Order

50.  Finally, the principle of totality requires further adjustment on the sentences and accordingly, I order that in the case of D1, as he faces one charge only and on Charge 5, D1 would receive 21 months’ imprisonment as his overall sentence.

51.  For D2, he faces a total of three charges, namely, Charge 1, Charge 2 and Charge 5.  While he is also receiving

52.  The total of this additional 7 months shall run consecutively to his sentences on Charge 5, with the remaining sentences on each charge to run concurrently with the other charges.

53.  D2’s overall sentence is therefore, 27 months’ imprisonment.

54.  D3 also faces a total of three charges, namely, Charge 3, Charge 4 and Charge 5.  While he is also receiving 20 months on Charge 5, he will receive an additional 4 months in respect of Charge 3 and an additional 3 months in respect of Charge 4.

55.  The total of the additional 7 months shall run consecutively to his sentence on Charge 5, with the remaining sentences on each charge to run concurrently with the other charges.

56.  D3’s overall sentence is, therefore also 27 months’ imprisonment.