DCCC1028/2011
DCCC602/2010
(heard together)
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASES NO. 1028 OF 2011 & 602 OF 2010
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HKSAR
v.
LEUNG Kiu-sun
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Before: District Judge Douglas T.H. Yau
Date: 1 Nov 2011 at 11:04am
Present: Mr. Bobby Cheung, Acting Senior Public Prosecutor for HKSAR
Mr. Liu Wah Tak Walter of M/S Walter Liu & Co,
assigned by DLA, for the defendant (for DCCC1028/2011 only)
Offences: 1) Theft (盜竊罪) (DCCC 1028/ 2011)
2) Failure to produce proof of identity on demand
(未能在規定下出示身分證明文件) (DCCC 1028/ 2011)
2) Failure to produce proof of identity on demand
(未能在規定下出示身分證明文件) (DCCC 602/ 2010)
Reasons for Sentence
1. The defendant pleaded guilty to one charge of theft and one charge of
failing to produce proof of identity on demand.
Facts
2. At around 11:20am on the charge date, while the victim was standing in
line outside a Chinese BBQ shop at no.45 Ho Pui Street, Tsuen Wan, a
plainclothes Police officer saw the defendant unzipped the rucksack of the
victim from behind and reached inside to take the coin bag particularized
in charge 1 and then walked quickly away.
3. The defendant was intercepted by the Police officer who arrested and
cautioned him. The defendant failed to produce proof of his identity upon
demand by the officer. Upon search, no document of identity were found
on the defendant.
Criminal Records
4. The defendant has 29 previous convictions, 22 of them relating to theft or
attempted theft. There is also one previous conviction for failing to
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produce proof of identity. He was last released from jail on 26 th April
2011.
5. In the previous case of DCCC602/2010, the defendant was convicted of 2
similar offences to the present case and was sentenced to imprisonment
for the attempted theft charge and a fine of $500 for the failure to produce
proof of identity charge. The defendant has failed to pay the fine within
the prescribed time. He is not represented by Mr. Liu on this and had
addressed the court directly, indicating that he has no money to pay the
fine and wish for a term of imprisonment in lieu.
Mitigation
6. The defendant was born in China and came to Hong Kong in 1979. He is
now 56 years old, living alone in a squatter hut in Shing Mun Reservoir
Village. The defendant has been unemployed for a long time. He once
worked as a casual worker earning about 3-4k per month. Although
unemployed, the defendant did not apply for any welfare assistance. He
would however borrow money from his friends. The defendant said he is
remorseful and promised to lead a new life.
Sentence
Charge 1
7. Similar to DCCC 602/2010, this is a case of pick-pocketing and as such the
guidelines set down in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 are
applicable. Although the facts of our present case do not state that the
scene of the crime was crowded at the time, the fact that the victim was
lining up in front of the Chinese BBQ shop indicates that there must have
been a number of people present. As such, the two aggravating factors
present are the theft being committed in a crowded public place and the
defendant’s lengthy criminal record.
8. The defendant committed the present theft within a few months of his
last release from prison. He was however acting alone. I will adopt a basic
starting point of 18 months’ imprisonment for the theft, then adjust it
upwards based on the fact that it was committed in a public place as well
as the defendant being a persistent offender and adopt the final starting
point of 30 months’ imprisonment for charge 1.
9. I will grant the defendant the full one third discount and sentence him to
20 months’ imprisonment on charge 1.
Charge 2
10. In relation to charge 2, pursuant to s.17C of the Immigration Ordinance,
Cap.115, I impose a fine of $700 to be paid forthwith, with 14 days’
imprisonment in lieu, to be served consecutively to his sentence in charge
1.
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11. Since the defendant indicated clearly that he will not be paying this
amount at all, I order that he serve this 14 days’ imprisonment and
sentence him to 20 months and 14 day’s imprisonment.
DCCC 602/2010
12. In relation to the failure to pay his fine imposed for charge 2 in
DCCC602/2010, I order that the defendant to serve 7 days’ imprisonment
in lieu. I order that this 7 days’ imprisonment to be served consecutively
to his term of imprisonment in charge 1 and 2 in DCCC1028/2011.
13. The defendant is therefore sentenced to a total of 20 months and 21 days’
imprisonment.
Douglas T.H. Yau
District Judge
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