DCCC103/2020 HKSAR v. SU QUANWEN AND ANOTHER - LawHero
DCCC103/2020
HKSAR v. SU QUANWEN AND ANOTHER
區域法院（刑事）H.H. Judge G. Lam21/7/2020[2020] HKDC 585
DCCC103/2020
由此
A A
B DCCC 103/2020 B
[2020] HKDC 585
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO. 103 OF 2020 E
F ____________ F
G G
HKSAR
H v H
SU Quanwen (D1)
I LI Tuanjie (D2) I
J ____________ J
K K
Before : H.H. Judge G. Lam
L Date : 22 July 2020 L
Present : Ms. Kitty Tsang, counsel on fiat, for HKSAR.
M Mr. Joseph Lam instructed by M/s Tang, Wong & M
Cheung, assigned by the Director of Legal Aid,
N
for D1. N
Mr. Paul Wu instructed by M/s Kent Tam & Co.,
assigned by the Director of Legal Aid, for D2.
O O
Offence : (1) to (5) Theft（盜竊）
(6) Breach of condition of stay（違反逗留條件）
P P
Q Q
REASONS FOR SENTENCE
R R
S D1 and D2 are jointly charged with 1 offence of "Theft" S
T (Charge 1); whereas D1 alone faces 1 charge of "Theft" (Charge 5) and 1 T
U U
V V
由此
- 2 -
A A
charge of "Breach of condition of stay1" (Charge 6), and D2 alone faces 3
B B
charges of "Theft" (Charges 2 to 4).
C C
D D
2. D1 and D2 pleaded guilty to their respective charges. Charges
E E
1 to 4 are related to pickpocketing; whereas Charge 5, theft by finding.
F F
G Summary of Facts G
H H
Charge 1
I I
J
3. About 5:10 p.m. on 30 December 2019, PC 14614 (PW1) J
spotted 2 males (later identified as D1 and D2) walking together at an expo
K K
held at the Victoria Park ("the Expo") and decided to follow them.
L L
M M
4. After wandering at the expo for a while, D1 and D2 were seen
N N
boarding a tram heading towards Wanchai. During the tram ride, they kept
O O
staring at the handbags and properties of other passengers.
P P
Q 5. About 6:00 p.m. on the same day, D1 and D2 arrived at Q
R Wanchai MTR Station. At Platform No.1, D2 pointed at a civilian (later R
S
confirmed to be Mr. Quan) who was walking with the aid of his female S
T T
1
Contrary to section 41 of the Immigration Ordinance (Cap.115).
U U
V V
由此
- 3 -
A A
partner. D1 and D2 then approached Mr. Quan. D1 stood on Mr. Quan's left
B B
and kept staring at Mr. Quan's left trouser pocket; whereas D2 stood on the
C C
right side of Mr. Quan's partner. When the incoming train arrived at
D D
Platform No.1 and the doors were opened, D2 suddenly rushed to the front
E E
of Mr. Quan's partner to block her way. At the same time, D1 inserted his
F F
hand into Mr. Quan's left trouser pocket and took his wallet ("the Wallet").
G D1 then put the wallet into the inner portion of his own vest. G
H H
I 6. At this moment, PW1 and his colleagues intercepted D1 and I
J
D2. D1 immediately dropped the Wallet on the ground. PW1 and his J
colleagues recovered the Wallet, which is of the "Gucci" brand (valued at
K K
$3,000). It contained cash in a total sum of $3,400, Mr. Quan's name cards
L L
and other items.
M M
N N
Charges 2, 3, 4 and 5
O O
7. Upon search, 1 "Huawei" mobile phone (valued at $6,800), 1
P P
iPhone (valued at $6,500) and 1 "Xiaomi" mobile phone (valued at $1,780)
Q Q
were found in D2's rucksack. All 3 phones are respectively the stolen
R R
properties particularized in Charges 2 to 4.
S S
T T
U U
V V
由此
- 4 -
A A
8. Inside D1's wallet, 4 Elderly Octopus Cards and 1 Adult
B B
Octopus Card were found. They do not belong to D1 and are the stolen
C C
properties particularized in Charge 5.
D D
E E
9. The respective owners of the 3 stolen mobile phones confirmed
F F
that around 3:30 p.m. on 30 December 2019 at the Expo, they found their
G phones missing. Regrettably, the owners of the 5 Octopus Cards found on G
H D1 could not be traced. H
I I
J
Admissions J
K K
10. Under caution, D1 admitted that he committed the offence in
L Charge 1 to make a living. Regarding Charge 5, he claimed that he picked L
M up the 5 Octopus Cards in Wanchai about a month ago, but was unable to M
N recall the exact details. N
O O
11. Regarding Charge 6, D1 admitted that he had overstayed in
P P
Hong Kong. According to immigration records, D1 arrived at Hong Kong
Q Q
on 24 October 2019 and was permitted to stay in Hong Kong as a visitor for
R R
7 days until 31 October 2019.
S S
T T
U U
V V
由此
- 5 -
A A
12. On the other hand, D2 arrived at Hong Kong on 25 December
B B
2019 and was permitted to stay in Hong Kong as a visitor for 7 days.
C C
D D
Mitigation
E E
D1
F F
G 13. He is 47 and has a clear record. His counsel Mr. Lam informed G
H me that D1 is a farmer and a part-time truck driver in the mainland. He H
I overstayed in Hong Kong for about 2 months. His mother (aged 75) has I
J
recently undergone surgery. J
K K
14. In mitigation, Mr. Lam accepted that for Charge 1, the crime
L L
was committed in a crowded place and by 2 culprits; however, no weapons
M M
or tools were used and the 2 defendants were not part of an organized and
N N
professional gang of thieves. Regarding Charge 5, Mr. Lam submitted that
O O
there is no evidence suggesting pickpocketing and asked this court to treat it
P P
as theft by finding.
Q Q
R D2 R
S S
15. He is 47 and has a clear record. His counsel Mr. Wu informed
T T
me that D2 is a sales person of construction materials in the mainland with a
U U
V V
由此
- 6 -
A A
monthly income of RMB 3,000 to 20,000. He is the sole bread winner of his
B B
family. D2 has problems with his lungs; his wife also suffers from
C C
long-term illness and his son is a tertiary student.
D D
E E
14. In mitigation, Mr. Wu accepted that both the Expo and
F F
Wanchai MTR Station were crowded places; however, no tools were used
G and the stolen properties in Charges 1 to 4 were all recovered. D2 did not G
H know D1 before; they just met at the Expo. D2 saw the waist bags of the H
I victims being left open, he committed the crimes out of momentary greed. I
J J
Sentence
K K
L 15. The nature of Charges 1 to 4 appears to be pickpocketing L
M simpliciter. Defence counsel accepted that both the Expo and Wanchai M
N MTR Station were crowded places at the time of the respective offences. D1 N
and D2 acted in concert when committing the offence in Charge 1.
O O
P P
16. Based on their immigration status and the lack of cogent
Q Q
explanation for visiting Hong Kong, I have no difficulty in finding that the
R R
sole purpose of D1 and D2 coming to Hong Kong is to look for ways to
S S
obtain financial gain by illegal means.
T T
U U
V V
由此
- 7 -
A A
17. I have borne in mind the relevant sentencing authorities2. For
B B
Charge 1, I adopt a starting point of 12 months' imprisonment. I will
C C
enhance it by 3 months since D1 and D2 acted in concert. I will further
D D
enhance the starting point by 3 months for committing the offence in a
E E
crowded public place. Hence, the ultimate starting point for Charge 1 is 18
F F
months' imprisonment. With their timely guilty pleas, I sentence D1 and D2
G each to 12 months' imprisonment for this charge. G
H H
I 18. For Charges 2 to 4, I adopt a starting point of 15 months' I
J
imprisonment each based on similar reasons. With his timely guilty pleas, I J
sentence D2 to 10 months' imprisonment for each charge.
K K
L L
19. For Charge 5, I consider a starting point of 6 months'
M M
imprisonment appropriate for "theft by finding". With his timely guilty plea,
N N
I sentence D1 to 4 months' imprisonment for this charge.
O O
P P
20. For Charge 6, I consider a starting point of 9 days'
Q imprisonment appropriate for having overstayed for 2 months. With his Q
R timely guilty plea, I sentence D1 to 6 days' imprisonment for this charge. R
S S
T 2
HKSAR v Wong Kang Sun [2014] 1 HKLRD 622, HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, T
HKSAR v Huynh Van Dung HCMA 270/2001 and 香港特別行政區 訴 武文全 HCMA 937/2001.
U U
V V
由此
- 8 -
A A
Overall Sentence
B B
C 21. D1 is sentenced to 12 months', 4 months' and 6 days' C
D imprisonment respectively for Charges 1, 5 and 6. Bearing in mind the D
E
totality principle, I consider a global starting point of 21 months' E
imprisonment appropriate. With his timely guilty pleas, the overall sentence
F F
is reduced to 14 months. Apart from this, I see no other mitigating factors
G G
which warrant any further reduction. To achieve this, I order the sentences
H H
to run in the following manner :-
I I
(i) Charges 5 and 6 concurrent; and
J J
K (ii) 2 months in Charges 5 and 6 consecutive to Charge 1. K
L L
22. D2 is sentenced to 12 months', 10 months', 10 months' and 10
M M
months' imprisonment respectively for Charges 1 to 4. Bearing in mind the
N N
totality principle, I consider a global starting point of 30 months'
O O
imprisonment appropriate. With his timely guilty pleas, the overall sentence
P P
is reduced to 20 months. Apart from this, I see no other mitigating factors
Q Q
which warrant any further reduction. To achieve this, I order the sentences
R to run in the following manner :- R
S S
T T
U U
V V
由此
- 9 -
A A
(i) Charges 2 to 4 concurrent; and
B B
C
(ii) 8 months in Charges 2 to 4 consecutive to Charge 1. C
D D
E E
F F
(G. Lam)
G
District Judge G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
由此
A A
B DCCC 103/2020 B
[2020] HKDC 585
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO. 103 OF 2020 E
F ____________ F
G G
HKSAR
H v H
SU Quanwen (D1)
I LI Tuanjie (D2) I
J ____________ J
K K
Before : H.H. Judge G. Lam
L Date : 22 July 2020 L
Present : Ms. Kitty Tsang, counsel on fiat, for HKSAR.
M Mr. Joseph Lam instructed by M/s Tang, Wong & M
Cheung, assigned by the Director of Legal Aid,
N
for D1. N
Mr. Paul Wu instructed by M/s Kent Tam & Co.,
assigned by the Director of Legal Aid, for D2.
O O
Offence : (1) to (5) Theft（盜竊）
(6) Breach of condition of stay（違反逗留條件）
P P
Q Q
REASONS FOR SENTENCE
R R
S D1 and D2 are jointly charged with 1 offence of "Theft" S
T (Charge 1); whereas D1 alone faces 1 charge of "Theft" (Charge 5) and 1 T
U U
V V
由此
- 2 -
A A
charge of "Breach of condition of stay1" (Charge 6), and D2 alone faces 3
B B
charges of "Theft" (Charges 2 to 4).
C C
D D
2. D1 and D2 pleaded guilty to their respective charges. Charges
E E
1 to 4 are related to pickpocketing; whereas Charge 5, theft by finding.
F F
G Summary of Facts G
H H
Charge 1
I I
J
3. About 5:10 p.m. on 30 December 2019, PC 14614 (PW1) J
spotted 2 males (later identified as D1 and D2) walking together at an expo
K K
held at the Victoria Park ("the Expo") and decided to follow them.
L L
M M
4. After wandering at the expo for a while, D1 and D2 were seen
N N
boarding a tram heading towards Wanchai. During the tram ride, they kept
O O
staring at the handbags and properties of other passengers.
P P
Q 5. About 6:00 p.m. on the same day, D1 and D2 arrived at Q
R Wanchai MTR Station. At Platform No.1, D2 pointed at a civilian (later R
S
confirmed to be Mr. Quan) who was walking with the aid of his female S
T T
1
Contrary to section 41 of the Immigration Ordinance (Cap.115).
U U
V V
由此
- 3 -
A A
partner. D1 and D2 then approached Mr. Quan. D1 stood on Mr. Quan's left
B B
and kept staring at Mr. Quan's left trouser pocket; whereas D2 stood on the
C C
right side of Mr. Quan's partner. When the incoming train arrived at
D D
Platform No.1 and the doors were opened, D2 suddenly rushed to the front
E E
of Mr. Quan's partner to block her way. At the same time, D1 inserted his
F F
hand into Mr. Quan's left trouser pocket and took his wallet ("the Wallet").
G D1 then put the wallet into the inner portion of his own vest. G
H H
I 6. At this moment, PW1 and his colleagues intercepted D1 and I
J
D2. D1 immediately dropped the Wallet on the ground. PW1 and his J
colleagues recovered the Wallet, which is of the "Gucci" brand (valued at
K K
$3,000). It contained cash in a total sum of $3,400, Mr. Quan's name cards
L L
and other items.
M M
N N
Charges 2, 3, 4 and 5
O O
7. Upon search, 1 "Huawei" mobile phone (valued at $6,800), 1
P P
iPhone (valued at $6,500) and 1 "Xiaomi" mobile phone (valued at $1,780)
Q Q
were found in D2's rucksack. All 3 phones are respectively the stolen
R R
properties particularized in Charges 2 to 4.
S S
T T
U U
V V
由此
- 4 -
A A
8. Inside D1's wallet, 4 Elderly Octopus Cards and 1 Adult
B B
Octopus Card were found. They do not belong to D1 and are the stolen
C C
properties particularized in Charge 5.
D D
E E
9. The respective owners of the 3 stolen mobile phones confirmed
F F
that around 3:30 p.m. on 30 December 2019 at the Expo, they found their
G phones missing. Regrettably, the owners of the 5 Octopus Cards found on G
H D1 could not be traced. H
I I
J
Admissions J
K K
10. Under caution, D1 admitted that he committed the offence in
L Charge 1 to make a living. Regarding Charge 5, he claimed that he picked L
M up the 5 Octopus Cards in Wanchai about a month ago, but was unable to M
N recall the exact details. N
O O
11. Regarding Charge 6, D1 admitted that he had overstayed in
P P
Hong Kong. According to immigration records, D1 arrived at Hong Kong
Q Q
on 24 October 2019 and was permitted to stay in Hong Kong as a visitor for
R R
7 days until 31 October 2019.
S S
T T
U U
V V
由此
- 5 -
A A
12. On the other hand, D2 arrived at Hong Kong on 25 December
B B
2019 and was permitted to stay in Hong Kong as a visitor for 7 days.
C C
D D
Mitigation
E E
D1
F F
G 13. He is 47 and has a clear record. His counsel Mr. Lam informed G
H me that D1 is a farmer and a part-time truck driver in the mainland. He H
I overstayed in Hong Kong for about 2 months. His mother (aged 75) has I
J
recently undergone surgery. J
K K
14. In mitigation, Mr. Lam accepted that for Charge 1, the crime
L L
was committed in a crowded place and by 2 culprits; however, no weapons
M M
or tools were used and the 2 defendants were not part of an organized and
N N
professional gang of thieves. Regarding Charge 5, Mr. Lam submitted that
O O
there is no evidence suggesting pickpocketing and asked this court to treat it
P P
as theft by finding.
Q Q
R D2 R
S S
15. He is 47 and has a clear record. His counsel Mr. Wu informed
T T
me that D2 is a sales person of construction materials in the mainland with a
U U
V V
由此
- 6 -
A A
monthly income of RMB 3,000 to 20,000. He is the sole bread winner of his
B B
family. D2 has problems with his lungs; his wife also suffers from
C C
long-term illness and his son is a tertiary student.
D D
E E
14. In mitigation, Mr. Wu accepted that both the Expo and
F F
Wanchai MTR Station were crowded places; however, no tools were used
G and the stolen properties in Charges 1 to 4 were all recovered. D2 did not G
H know D1 before; they just met at the Expo. D2 saw the waist bags of the H
I victims being left open, he committed the crimes out of momentary greed. I
J J
Sentence
K K
L 15. The nature of Charges 1 to 4 appears to be pickpocketing L
M simpliciter. Defence counsel accepted that both the Expo and Wanchai M
N MTR Station were crowded places at the time of the respective offences. D1 N
and D2 acted in concert when committing the offence in Charge 1.
O O
P P
16. Based on their immigration status and the lack of cogent
Q Q
explanation for visiting Hong Kong, I have no difficulty in finding that the
R R
sole purpose of D1 and D2 coming to Hong Kong is to look for ways to
S S
obtain financial gain by illegal means.
T T
U U
V V
由此
- 7 -
A A
17. I have borne in mind the relevant sentencing authorities2. For
B B
Charge 1, I adopt a starting point of 12 months' imprisonment. I will
C C
enhance it by 3 months since D1 and D2 acted in concert. I will further
D D
enhance the starting point by 3 months for committing the offence in a
E E
crowded public place. Hence, the ultimate starting point for Charge 1 is 18
F F
months' imprisonment. With their timely guilty pleas, I sentence D1 and D2
G each to 12 months' imprisonment for this charge. G
H H
I 18. For Charges 2 to 4, I adopt a starting point of 15 months' I
J
imprisonment each based on similar reasons. With his timely guilty pleas, I J
sentence D2 to 10 months' imprisonment for each charge.
K K
L L
19. For Charge 5, I consider a starting point of 6 months'
M M
imprisonment appropriate for "theft by finding". With his timely guilty plea,
N N
I sentence D1 to 4 months' imprisonment for this charge.
O O
P P
20. For Charge 6, I consider a starting point of 9 days'
Q imprisonment appropriate for having overstayed for 2 months. With his Q
R timely guilty plea, I sentence D1 to 6 days' imprisonment for this charge. R
S S
T 2
HKSAR v Wong Kang Sun [2014] 1 HKLRD 622, HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, T
HKSAR v Huynh Van Dung HCMA 270/2001 and 香港特別行政區 訴 武文全 HCMA 937/2001.
U U
V V
由此
- 8 -
A A
Overall Sentence
B B
C 21. D1 is sentenced to 12 months', 4 months' and 6 days' C
D imprisonment respectively for Charges 1, 5 and 6. Bearing in mind the D
E
totality principle, I consider a global starting point of 21 months' E
imprisonment appropriate. With his timely guilty pleas, the overall sentence
F F
is reduced to 14 months. Apart from this, I see no other mitigating factors
G G
which warrant any further reduction. To achieve this, I order the sentences
H H
to run in the following manner :-
I I
(i) Charges 5 and 6 concurrent; and
J J
K (ii) 2 months in Charges 5 and 6 consecutive to Charge 1. K
L L
22. D2 is sentenced to 12 months', 10 months', 10 months' and 10
M M
months' imprisonment respectively for Charges 1 to 4. Bearing in mind the
N N
totality principle, I consider a global starting point of 30 months'
O O
imprisonment appropriate. With his timely guilty pleas, the overall sentence
P P
is reduced to 20 months. Apart from this, I see no other mitigating factors
Q Q
which warrant any further reduction. To achieve this, I order the sentences
R to run in the following manner :- R
S S
T T
U U
V V
由此
- 9 -
A A
(i) Charges 2 to 4 concurrent; and
B B
C
(ii) 8 months in Charges 2 to 4 consecutive to Charge 1. C
D D
E E
F F
(G. Lam)
G
District Judge G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V