A A
DCCC135/2011
B B
IN THE DISTRICT COURT OF THE
C C
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 135 OF 2011
D D
----------------------
E E
HKSAR
F F
v.
G G
LIU Linfeng
H H
----------------------
I I
Before: H H Judge Anthea Pang
J Date: 5 May 2011 at 3.25 pm J
Present: Ms Monica Chan, PP of the Department of Justice, for HKSAR
K Mr Chan Chi Shing, of Messrs C.S. Chan & Co., assigned by the K
Director of Legal Aid, for the Defendant
L Offence: (1) & (2) Theft (盜竊罪) L
(3) Resisting police officers in the execution of their duty (抗拒在執
M 行職務的警務人員) M
N N
-------------------------------
O O
Reasons for Sentence
P P
-------------------------------
Q Q
The Charges
R R
S 1. The Defendant pleaded guilty before me to two charges of theft, contrary S
to section 9 of the Theft Ordinance, Cap. 210, (the 1st and the 2nd charges).
T T
He also pleaded guilty to one charge of “resisting police officers in the
U U
1 DCCC135/2011/Sentence
V V
A A
execution of their duty”, contrary to section 63 of the Police Force
B Ordinance, Cap. 232 (the 3rd charge). B
C C
The Facts
D D
E 2. Although the Defendant admitted that he committed the three offences in E
question, insofar as the 2nd charge is concerned, he disputed the
F F
prosecution’s case that he was acting together with other persons. As a
G G
result, a Newton Hearing was conducted, and after considering the
H evidence, I found that the Defendant did commit that theft offence H
together with two other persons. The reasons for my finding have been set
I I
out in detail when I gave my ruling on the matter and I shall not repeat
J them here. J
K K
3. Now, the facts, as admitted by the Defendant and as found by me after the
L L
Newton Hearing, are as follows : At about 5:30 p.m. on 13 January 2011, 2
M police officers (PW1 and PW2) were on patrol on board a MTR train M
heading towards Chai Wan. They noticed a group of 3 men acting
N N
suspiciously as the group was paying particular attention to the bags
O O
carried by passengers. The officers therefore kept the men under
P observation. The Defendant, who arrived in Hong Kong on the strength of P
a Two-Way Permit at 11:00 a.m. that morning, was amongst this group of
Q Q
three.
R R
S 4. When the train was about to stop at the Tin Hau Station, a female S
passenger, the victim named in the 2nd charge, stood near the door of the
T T
compartment, intending to alight from the train. The three men then
U U
2 DCCC135/2011/Sentence
V V
A A
moved close to the victim, with one standing at her right, another behind
B her, and the Defendant standing at her left. The man on her right then B
dropped something onto the ground. When he bent down to pick the
C C
things up, the victim turned slightly and looked down.
D D
E 5. At that juncture, the Defendant and the other man moved even closer to E
the victim. The Defendant then reached his hand into the left pocket of the
F F
victim’s jacket and took away her iPhone which was valued at about
G G
HK$4,400. Afterwards, the Defendant concealed the phone underneath a
H jacket hanging on his left forearm. H
I I
6. The stealing was witnessed by PW1, the Police Sergeant. When the door
J J
was opened, the Defendant left the train immediately. PW1 and PW2 gave
K chase. This is the subject matter of the 2nd charge. K
L L
7. When the two police officers tried to arrest the Defendant, he put up a
M M
violent struggle which lasted for about 1 minute. An off-duty police officer
N happened to be there and he assisted in subduing the Defendant. In the N
course of the arrest, both PW1 and PW2 were injured. PW1 had tenderness
O O
to his right shoulder, left ankle and lower back whereas PW2 had
P P
tenderness to the right corner of his lower lip and abrasion to his right
Q index finger and left hand dorsum. This is the subject matter of the 3rd Q
charge.
R R
S S
8. During a search conducted on the Defendant after his arrest, another
T iPhone was found on his person. Under caution, the Defendant admitted T
U U
3 DCCC135/2011/Sentence
V V
A A
that he had stolen this phone from a male passenger earlier that day in a
B MTR station. This is the subject matter of the 1st charge. B
C C
Mitigation
D D
E 9. The Defendant is now aged 29. He has a clear record in Hong Kong. The E
Defendant was born in the Mainland and was educated up to Form 1 level.
F F
Prior to his arrest, he was a worker in Shenzhen.
G G
H 10. In mitigation, it was said that the Defendant committed the present H
I
offences in order to obtain money to send her mother to hospital for I
treatment. His mother, unfortunately, has now passed away. The
J J
Defendant expresses in a letter to the court that he regrets what he did and
K he is prepared to accept the punishment. He begs for a lenient sentence so K
that he could re-unite with his family members as soon as possible.
L L
M M
Sentencing Considerations
N N
11. The 1st and 2nd charges concern pickpocketing offences. In HKSAR v Ngo
O O
Van Huy [2005] 2 HKLRD 1, the Court of Appeal laid down the guidelines
P and principles for sentencing this type of offence and observed that theft P
Q by pickpocketing is the type of offence that society severely and rightly Q
condemns for the offence could be committed with relative ease but would
R R
cause a significant degree of inconvenience to the victim, and would also
S adversely affect the reputation of Hong Kong. The Court of Appeal S
considers that a guideline sentence of 12-15 months after trial is
T T
U U
4 DCCC135/2011/Sentence
V V
A A
appropriate for a first time offender, and depending on whether there are
B other aggravating factors, the sentence could be adjusted accordingly. B
C C
12. Insofar as the 3rd charge is concerned, that is, “resisting police officers in
D D
the execution of their duty”, the Court of Appeal in SJ v Ko Wai Kit [2001]
E 3 HKLRD 751, which related to a charge of “resisting police officers” E
under section 36(b) of the Offences against the Person Ordinance, Cap. 212,
F F
noted that,
G G
H “22. … The sentence to be imposed for such cases must carry a heavy H
deterrent element, for it is vital that those engaged to execute police duties
I I
are enabled properly to do so.”
J J
13. In the present case, although the “resisting” charge was brought under the
K K
Police Force Ordinance which only carries a maximum imprisonment of 6
L L
months, the same principle applies. That is, police officers should be
M protected when they are executing their duties and anyone who resists or M
assaults the officers when they are doing so should be deterred.
N N
O Sentence - the 1st Charge O
P P
14. Following the guidelines and principles, I am going to adopt an initial
Q Q
starting point of 15 months for the 1st charge.
R R
S 15. I note that this offence was committed in a MTR station. The MTR is one of S
the usual means by which people in Hong Kong travel. The Defendant
T T
chose to commit the offence in the station, no doubt because it would be
U U
5 DCCC135/2011/Sentence
V V
A A
easy to find his prey there and also because it would make his commission
B of the offence easier when people are travelling and when they may not be B
paying attention to their properties. In a MTR station, the public is
C C
therefore at particular risk to fall prey to offenders like the Defendant. For
D D
this aggravating factor, I am going to increase the initial starting point by 3
E months. E
F F
16. Further, I cannot ignore the fact that the Defendant was here as a visitor
G G
and he arrived in Hong Kong that very morning at 11:00 a.m. Yet, by that
H evening, he had already committed two theft offences. People who H
deliberately come to Hong Kong to commit offences should be deterred. In
I I
the present case, I have no doubt that the Defendant is one of those who
J J
enter Hong Kong in order to make quick profits by engaging themselves in
K criminal activities here for, otherwise, there was no reason for the K
Defendant to be involved in these successive offences on the first day
L L
when he was here. I would therefore increase the starting point by another
M 3 months to reflect this aggravating feature. M
N N
17. With the upward adjustments mentioned above, the starting point which I
O O
am going to adopt for charge 1 is one of 21 months. The Defendant
P pleaded guilty and he would get a one-third reduction for his plea. Other P
Q than his plea, I do not see any other mitigating factor which would Q
warrant a further reduction in sentence. The Defendant is therefore to
R R
serve a term of 14 months in respect of the 1st charge.
S S
T T
U U
6 DCCC135/2011/Sentence
V V
A A
Sentence - the 2nd Charge
B B
C 18. On the facts which I have found, the Defendant committed this offence C
together with two other persons. They acted together at the time, with one
D D
of them distracting the victim while the Defendant took the opportunity to
E steal the phone. Although the acts involved are not particularly E
sophisticated ones, the way they committed the offence indicated that they
F F
must have had put their heads together beforehand to devise the scheme
G G
and the modus operandi. Given the degree of planning, and that the
H Defendant committed this offence in conjunction with others, I am going H
to increase the starting point of 15 months to one of 27 months.
I I
J J
19. The Defendant committed this offence on board a MTR train at about 5:30
K p.m.. No doubt, people were finishing work at that time and would be K
heading for home or for entertainment. The commission of pickpocketing
L L
offences on passengers travelling on the MTR is an aggravating factor, and
M for this, I am going to increase the starting point by 3 months. M
N N
20. Other than the above, there is also the aggravating factor of the Defendant
O O
coming to Hong Kong to commit crime and, for the reasons mentioned
P above, I am going to further increase the starting point by another 3 P
Q months. Q
R R
21. Therefore, with these upward adjustments, the starting point for the 2 nd
S S
charge is one of 33 months.
T T
U U
7 DCCC135/2011/Sentence
V V
A A
22. Although the Defendant pleaded guilty to this charge, he denied that he
B was acting together with others at the time. As a result, a Newton Hearing B
was conducted. In the circumstances, the Defendant is no longer entitled to
C C
the one-third reduction which is usually associated with a guilty plea.
D D
After considering the matter and having taken into account his
E “conditional” plea, I am of the view that the Defendant should serve a E
term of 26 months in respect of this charge.
F F
G G
Sentence - the 3rd Charge
H H
23. Given the facts in respect of the third charge, and the injuries sustained by
I I
the two officers, I am of the view that a starting point of 4½ months is
J J
appropriate. The Defendant pleaded guilty and he would receive a one-
K third reduction for this. As I have mentioned above, there are no other K
mitigating factors. In other words, the Defendant is going to serve a term
L L
of 3 months in respect of the 3 charge.
rd
M M
N
Totality Principle N
O O
24. All these offences are separate and distinct and, in principle, the sentences
P should be served consecutively. However, if so, it would mean that the P
Defendant has to serve a total term of 43 months’ imprisonment for these
Q Q
three charges. This, in my view, is too great a totality.
R R
S 25. In this case, taking into account the Defendant’s pleas, I regard an overall S
sentence of 33 months to be appropriate. I therefore order that :
T T
U U
8 DCCC135/2011/Sentence
V V
A A
(a) Only 16 months of the 26-month term in respect of the 2nd charge are
B to be served consecutively to the term of 14 months in respect of the B
1st charge; and
C C
D D
(b) The term of 3 months in respect of the 3rd charge is to be served
E wholly consecutively to the other terms. E
F F
26. The total term is therefore one of 33 months.
G G
H H
I I
J (Anthea Pang) J
District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
9 DCCC135/2011/Sentence
V V
A A
DCCC135/2011
B B
IN THE DISTRICT COURT OF THE
C C
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 135 OF 2011
D D
----------------------
E E
HKSAR
F F
v.
G G
LIU Linfeng
H H
----------------------
I I
Before: H H Judge Anthea Pang
J Date: 5 May 2011 at 3.25 pm J
Present: Ms Monica Chan, PP of the Department of Justice, for HKSAR
K Mr Chan Chi Shing, of Messrs C.S. Chan & Co., assigned by the K
Director of Legal Aid, for the Defendant
L Offence: (1) & (2) Theft (盜竊罪) L
(3) Resisting police officers in the execution of their duty (抗拒在執
M 行職務的警務人員) M
N N
-------------------------------
O O
Reasons for Sentence
P P
-------------------------------
Q Q
The Charges
R R
S 1. The Defendant pleaded guilty before me to two charges of theft, contrary S
to section 9 of the Theft Ordinance, Cap. 210, (the 1st and the 2nd charges).
T T
He also pleaded guilty to one charge of “resisting police officers in the
U U
1 DCCC135/2011/Sentence
V V
A A
execution of their duty”, contrary to section 63 of the Police Force
B Ordinance, Cap. 232 (the 3rd charge). B
C C
The Facts
D D
E 2. Although the Defendant admitted that he committed the three offences in E
question, insofar as the 2nd charge is concerned, he disputed the
F F
prosecution’s case that he was acting together with other persons. As a
G G
result, a Newton Hearing was conducted, and after considering the
H evidence, I found that the Defendant did commit that theft offence H
together with two other persons. The reasons for my finding have been set
I I
out in detail when I gave my ruling on the matter and I shall not repeat
J them here. J
K K
3. Now, the facts, as admitted by the Defendant and as found by me after the
L L
Newton Hearing, are as follows : At about 5:30 p.m. on 13 January 2011, 2
M police officers (PW1 and PW2) were on patrol on board a MTR train M
heading towards Chai Wan. They noticed a group of 3 men acting
N N
suspiciously as the group was paying particular attention to the bags
O O
carried by passengers. The officers therefore kept the men under
P observation. The Defendant, who arrived in Hong Kong on the strength of P
a Two-Way Permit at 11:00 a.m. that morning, was amongst this group of
Q Q
three.
R R
S 4. When the train was about to stop at the Tin Hau Station, a female S
passenger, the victim named in the 2nd charge, stood near the door of the
T T
compartment, intending to alight from the train. The three men then
U U
2 DCCC135/2011/Sentence
V V
A A
moved close to the victim, with one standing at her right, another behind
B her, and the Defendant standing at her left. The man on her right then B
dropped something onto the ground. When he bent down to pick the
C C
things up, the victim turned slightly and looked down.
D D
E 5. At that juncture, the Defendant and the other man moved even closer to E
the victim. The Defendant then reached his hand into the left pocket of the
F F
victim’s jacket and took away her iPhone which was valued at about
G G
HK$4,400. Afterwards, the Defendant concealed the phone underneath a
H jacket hanging on his left forearm. H
I I
6. The stealing was witnessed by PW1, the Police Sergeant. When the door
J J
was opened, the Defendant left the train immediately. PW1 and PW2 gave
K chase. This is the subject matter of the 2nd charge. K
L L
7. When the two police officers tried to arrest the Defendant, he put up a
M M
violent struggle which lasted for about 1 minute. An off-duty police officer
N happened to be there and he assisted in subduing the Defendant. In the N
course of the arrest, both PW1 and PW2 were injured. PW1 had tenderness
O O
to his right shoulder, left ankle and lower back whereas PW2 had
P P
tenderness to the right corner of his lower lip and abrasion to his right
Q index finger and left hand dorsum. This is the subject matter of the 3rd Q
charge.
R R
S S
8. During a search conducted on the Defendant after his arrest, another
T iPhone was found on his person. Under caution, the Defendant admitted T
U U
3 DCCC135/2011/Sentence
V V
A A
that he had stolen this phone from a male passenger earlier that day in a
B MTR station. This is the subject matter of the 1st charge. B
C C
Mitigation
D D
E 9. The Defendant is now aged 29. He has a clear record in Hong Kong. The E
Defendant was born in the Mainland and was educated up to Form 1 level.
F F
Prior to his arrest, he was a worker in Shenzhen.
G G
H 10. In mitigation, it was said that the Defendant committed the present H
I
offences in order to obtain money to send her mother to hospital for I
treatment. His mother, unfortunately, has now passed away. The
J J
Defendant expresses in a letter to the court that he regrets what he did and
K he is prepared to accept the punishment. He begs for a lenient sentence so K
that he could re-unite with his family members as soon as possible.
L L
M M
Sentencing Considerations
N N
11. The 1st and 2nd charges concern pickpocketing offences. In HKSAR v Ngo
O O
Van Huy [2005] 2 HKLRD 1, the Court of Appeal laid down the guidelines
P and principles for sentencing this type of offence and observed that theft P
Q by pickpocketing is the type of offence that society severely and rightly Q
condemns for the offence could be committed with relative ease but would
R R
cause a significant degree of inconvenience to the victim, and would also
S adversely affect the reputation of Hong Kong. The Court of Appeal S
considers that a guideline sentence of 12-15 months after trial is
T T
U U
4 DCCC135/2011/Sentence
V V
A A
appropriate for a first time offender, and depending on whether there are
B other aggravating factors, the sentence could be adjusted accordingly. B
C C
12. Insofar as the 3rd charge is concerned, that is, “resisting police officers in
D D
the execution of their duty”, the Court of Appeal in SJ v Ko Wai Kit [2001]
E 3 HKLRD 751, which related to a charge of “resisting police officers” E
under section 36(b) of the Offences against the Person Ordinance, Cap. 212,
F F
noted that,
G G
H “22. … The sentence to be imposed for such cases must carry a heavy H
deterrent element, for it is vital that those engaged to execute police duties
I I
are enabled properly to do so.”
J J
13. In the present case, although the “resisting” charge was brought under the
K K
Police Force Ordinance which only carries a maximum imprisonment of 6
L L
months, the same principle applies. That is, police officers should be
M protected when they are executing their duties and anyone who resists or M
assaults the officers when they are doing so should be deterred.
N N
O Sentence - the 1st Charge O
P P
14. Following the guidelines and principles, I am going to adopt an initial
Q Q
starting point of 15 months for the 1st charge.
R R
S 15. I note that this offence was committed in a MTR station. The MTR is one of S
the usual means by which people in Hong Kong travel. The Defendant
T T
chose to commit the offence in the station, no doubt because it would be
U U
5 DCCC135/2011/Sentence
V V
A A
easy to find his prey there and also because it would make his commission
B of the offence easier when people are travelling and when they may not be B
paying attention to their properties. In a MTR station, the public is
C C
therefore at particular risk to fall prey to offenders like the Defendant. For
D D
this aggravating factor, I am going to increase the initial starting point by 3
E months. E
F F
16. Further, I cannot ignore the fact that the Defendant was here as a visitor
G G
and he arrived in Hong Kong that very morning at 11:00 a.m. Yet, by that
H evening, he had already committed two theft offences. People who H
deliberately come to Hong Kong to commit offences should be deterred. In
I I
the present case, I have no doubt that the Defendant is one of those who
J J
enter Hong Kong in order to make quick profits by engaging themselves in
K criminal activities here for, otherwise, there was no reason for the K
Defendant to be involved in these successive offences on the first day
L L
when he was here. I would therefore increase the starting point by another
M 3 months to reflect this aggravating feature. M
N N
17. With the upward adjustments mentioned above, the starting point which I
O O
am going to adopt for charge 1 is one of 21 months. The Defendant
P pleaded guilty and he would get a one-third reduction for his plea. Other P
Q than his plea, I do not see any other mitigating factor which would Q
warrant a further reduction in sentence. The Defendant is therefore to
R R
serve a term of 14 months in respect of the 1st charge.
S S
T T
U U
6 DCCC135/2011/Sentence
V V
A A
Sentence - the 2nd Charge
B B
C 18. On the facts which I have found, the Defendant committed this offence C
together with two other persons. They acted together at the time, with one
D D
of them distracting the victim while the Defendant took the opportunity to
E steal the phone. Although the acts involved are not particularly E
sophisticated ones, the way they committed the offence indicated that they
F F
must have had put their heads together beforehand to devise the scheme
G G
and the modus operandi. Given the degree of planning, and that the
H Defendant committed this offence in conjunction with others, I am going H
to increase the starting point of 15 months to one of 27 months.
I I
J J
19. The Defendant committed this offence on board a MTR train at about 5:30
K p.m.. No doubt, people were finishing work at that time and would be K
heading for home or for entertainment. The commission of pickpocketing
L L
offences on passengers travelling on the MTR is an aggravating factor, and
M for this, I am going to increase the starting point by 3 months. M
N N
20. Other than the above, there is also the aggravating factor of the Defendant
O O
coming to Hong Kong to commit crime and, for the reasons mentioned
P above, I am going to further increase the starting point by another 3 P
Q months. Q
R R
21. Therefore, with these upward adjustments, the starting point for the 2 nd
S S
charge is one of 33 months.
T T
U U
7 DCCC135/2011/Sentence
V V
A A
22. Although the Defendant pleaded guilty to this charge, he denied that he
B was acting together with others at the time. As a result, a Newton Hearing B
was conducted. In the circumstances, the Defendant is no longer entitled to
C C
the one-third reduction which is usually associated with a guilty plea.
D D
After considering the matter and having taken into account his
E “conditional” plea, I am of the view that the Defendant should serve a E
term of 26 months in respect of this charge.
F F
G G
Sentence - the 3rd Charge
H H
23. Given the facts in respect of the third charge, and the injuries sustained by
I I
the two officers, I am of the view that a starting point of 4½ months is
J J
appropriate. The Defendant pleaded guilty and he would receive a one-
K third reduction for this. As I have mentioned above, there are no other K
mitigating factors. In other words, the Defendant is going to serve a term
L L
of 3 months in respect of the 3 charge.
rd
M M
N
Totality Principle N
O O
24. All these offences are separate and distinct and, in principle, the sentences
P should be served consecutively. However, if so, it would mean that the P
Defendant has to serve a total term of 43 months’ imprisonment for these
Q Q
three charges. This, in my view, is too great a totality.
R R
S 25. In this case, taking into account the Defendant’s pleas, I regard an overall S
sentence of 33 months to be appropriate. I therefore order that :
T T
U U
8 DCCC135/2011/Sentence
V V
A A
(a) Only 16 months of the 26-month term in respect of the 2nd charge are
B to be served consecutively to the term of 14 months in respect of the B
1st charge; and
C C
D D
(b) The term of 3 months in respect of the 3rd charge is to be served
E wholly consecutively to the other terms. E
F F
26. The total term is therefore one of 33 months.
G G
H H
I I
J (Anthea Pang) J
District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
9 DCCC135/2011/Sentence
V V