HKSAR v. KUOK KAM KUONG

DCCC 496/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 496 OF 2014

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REASONS FOR SENTENCE

The defendant faces 8 charges of "Theft" (Charges 1 to 8). He pleaded guilty to Charges 1, 2, 3, 6 and 8. The prosecution applied to leave Charge 4, 5 and 7 in the court file; not to be proceeded against him without leave of court. I granted the application.

2.  The facts of this case are straightforward.  The crimes took place between August 2013 and April 2014.  On the offence dates, the defendant entered into different retail shops pretending to purchase goods, and then made up various excuses to divert the salesperson's attention.  Whilst the respective salespersons were busy dealing with the defendant's requests, the defendant stole the salesperson's mobile phone, which was placed on the counter or cashier unattended.  As a result, the defendant stole a total of 5 mobile phones.

3.  In the process of committing the offence in Charge 8, the defendant was observed by DSPC 51932 outside the shop.  He saw the defendant taking the salesperson's mobile phone and putting it into his pocket.  When the defendant left the shop, the detective followed him.  He intercepted the defendant and searched him.  He found the mobile phone in the defendant's pocket.

4.  The defendant's stealing acts in Charges 1, 3 and 6 were captured by the CCTV camera in the respective shops.  The victim in  Charge 2 identified the defendant in an identification parade.

5.  In his video recorded interviews, the defendant admitted under caution that he committed the offences in Charges 1, 3, 6 and 8.  He made up excuses to divert the attention of the victims whilst he stole their mobile phones, which were left unattended in the shops.

Mitigation & Sentence

6.  The defendant is a 51-year-old Macau resident.  He has 1 conviction record dated 2007 involving 2 offences of "Theft". 

7.  Defence counsel Ms. CHOW informed me that the defendant has all along worked as a decoration worker until 2013, earning $12,000 per month.  He was suffering from cataract and heart problem then, and was unable to work in a dusty environment.  The defendant has tried to look for other jobs, but was unsuccessful.  As a result, the financial burden fell on his wife, who is only able to earn $9,000 per month.  The defendant's 4 children are all in school.  His eldest daughter will start university this month; and his youngest son, secondary school.

8.  Ms. CHOW submitted that the total value of all the phones stolen by the defendant in Charges 1, 2, 3 and 6 is slightly short of $22,000.  The phone in Charge 8 was recovered and returned to the victim.  Ms. CHOW further submitted that the defendant is not a professional thief, but merely an unemployed man stealing.  She stressed that the defendant acted alone; the stealing acts did not involve much planning; and he chose the shops at random.

9.  Ms. CHOW submitted 4 cases[1] on sentencing for my consideration.  I have also considered the decision by Deputy High Court Judge M. Poon (as she then was) in 香港特別行政區訴朱浩泉HCMA 421/2009 (Chinese judgment).  In the present case, the defendant acted alone; pretended to be a customer; distracted the salesperson; stole the mobile phone; and used excuses to leave the shop.  He might have picked the shops at random, but he certainly had a well thought out plan to steal each time.

10.  I take the view that the defendant's stealing acts are akin to "Pickpocketing", which warrant a starting point of 12 months' imprisonment for each charge.  A one-third discount is given for his guilty pleas.  The sentence is therefore 8 months' imprisonment for each charge.  

11.  The offences in Charges 1, 2, 3, 6 and 8 took place over a period of 8 months.  Having considered the totality principle, I order that the sentences for the 5 charges to run in the following manner :

(i) 3 months in Charge 2 consecutive to Charge 1;

(ii) 3 months in Charge 3 consecutive to Charges 1 and 2;

(iii) 3 months in Charge 6 consecutive to Charges 1, 2 and 3; and

(iv) 2 months in Charge 8 consecutive to all other charges[2].

Thus, arriving at a total prison term of 19 months.