HKSAR v. YAN SHUCHENG AND ANOTHER

DCCC 1039/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1039 OF 2012

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Reasons for Sentence

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Charge and facts

1.  D1 and D2 admit the charge of theft.  At the escalator going up from the platform at the Jordan MTR Station, one step behind the victim was D1.  One step behind D1 was D2.  D2 unfolded a map to block others’ view as D1 unzipped the briefcase and took an iPhone 4S from it.  D1 put the iPhone 4S into his own shoulder bag.  The police on patrol saw the theft and arrested them.  Under caution, each admitted the offence for having no money for meals.  Immigration record showed that they had arrived in Hong Kong on 2 October 2012. 

Personal background and mitigation

2.  D1 is 31 years of age, a Mainland resident.  He has a clear record in Hong Kong. He has received junior secondary education.  He works as a chef.  He lives with his wife, his son and his parents.  He is the main breadwinner. 

3.  D2 is 33 years of age, a Mainland resident.  He has a clear record in Hong Kong. He has received senior secondary education.  He works as a chef.  He lives with his wife, his daughter and his mother.  He is the main breadwinner. 

4.  Their solicitor accepts on their behalf that one of their purposes in coming to Hong Kong was to commit a crime to make money, which they subsequently acted out in concert in a crowded place.

Sentencing considerations

5.  In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal laid down a guideline sentence of 12 to 15 months for pickpocketing after trial for a first time offender.  A heavier sentence would be imposed where there were aggravating factors (per Ma CJHC, as he then was, at page 7), which included:

(1) The offence committed in a place in which the public is at particular risk, such as crowded places like the MTR or the race course, crowded shopping areas where the pedestrian traffic is heavy;

(2) Repeat or persistent offending.

6.  In HKSAR v. Tan Hong Sheng CACC 238/2005, the applicant and his accomplice committed the offence of pickpocketing the very next day after arrival in Hong Kong.  The Court of Appeal agreed with the sentencing judge that this is a most serious aggravating factor (as per Yeung JA, at para 26).  

Sentencing present defendants

7.  Given that one of their purposes in coming to Hong Kong was to commit a crime to make money, which they subsequently acted out in concert in a crowded place, I take a starting point of 30 months.  The guilty plea attracts a one-third discount. In the absence of other mitigating factors, each is sentenced to 20 months.