HKSAR v. Ngyuen Van Minh

DCCC 516/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 516 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of theft. It is a pickpocketing case which took place in Tung Choi Street, Mong Kok, Kowloon.

2.The facts are that on 26 April 2015 the defendant was seen by a police officer (PW2), acting suspiciously.  He was looking at bags carried by passers-by.  PW2 put the defendant under observation.  Within minutes, he saw the defendant walk behind a young lady on Tung Choi Street and then reach his hand into a side pocket of her rucksack. He took out an iPhone.  She obviously did not notice.  Within 200 metres of the offence location, the defendant was stopped by two other police officers.  The victim’s mobile phone was found in the defendant’s trouser pocket.

3.Whilst the police were investigating, the defendant tried to escape.  He deliberately bumped into a police officer, causing him to drop the victim’s mobile phone he had been holding.  It took two officers to subdue him and eventually handcuff him. 

4.After he was arrested and taken to a police station, he was then interviewed under caution.  With the assistance of a Vietnamese interpreter, the defendant told the police that he found the mobile phone and he did not steal it.  The victim had dropped it on the floor whilst shopping and he picked it up.  He decided to take it because he had no money.

5.I have been told in mitigation the defendant is 45 years old.  He came to Hong Kong as a refugee from Vietnam in 1987.  He was 17 when he arrived and has remained single. The rest of his immediate family are still in Vietnam. 

6.Within two years of arriving in Hong Kong, he committed his first offence, a charge of theft.  To be precise, it was a pickpocketing offence, and thereafter he committed 20 more offences involving dishonesty, many of them being pickpocketing offences.  He has 11 other convictions, mainly for dealing with illicit cigarettes as well as two possession of dangerous drugs convictions. 

7.His last conviction was a pickpocketing offence, where in September 2013 he was sentenced to 18 months’ imprisonment after plea. He was released from custody in June 2014 after serving that sentence.

8.Within one year he has committed the same offence again in the same area of Mong Kok.

9.I have had sight of the reasons for sentence passed for his last conviction in September 2013.  A starting point of 27 months was adopted. 

10.The defendant’s criminal record is appalling. He is a recidivist and a persistent offender.  The defendant has spent most of his time in Hong Kong in and out of prison.

11.I have been told that the defendant committed this offence because he was in financial difficulty and needed rent money. Despite being a skilled construction site worker, he finds it hard to obtain full-time work.

12.I have had a letter of mitigation from the defendant expressing his remorse and explaining his circumstances. 

13.For the purposes of sentencing, I have considered the authority of HKSAR v Ngo Van Huy [2015] 2 HKLRD 1, where the Court of Appeal sets out tariffs for pickpockets.

14.I have also considered the facts in this case. The defendant acted alone.  It was not a sophisticated operation.

15.I intend to initially take a 15-month starting point, but I will increase it for two aggravating factors.  Firstly, the offence was in a very crowded area of Hong Kong.  I take judicial notice that 5 pm on a Sunday in Tung Choi Street would be a very crowded and very busy area.

16.I increase the starting point of 15 months by 3 months for that factor.

17.I further increase that starting point of now 18 months by a further 12 months for the defendant’s appalling criminal record and his recidivist behaviour.

18.I find support for this increase in the authority of HKSAR v Tsui Chiu Kwai, CACC 452/2011, as well as HKSAR v Pham Tai Van Bao, CACC 206/2010. 

19.In 2003, the court took a 27 month starting point when sentencing this defendant for a case of very similar facts.

20.I am of the view the defendant deserves a higher starting point for again committing the same offence.  That is why I take here a starting point of 30 months’ imprisonment.

21.Defendant has pleaded guilty and is entitled to a discount of one-third for his plea.

22.Defendant, please stand up.

23.Accordingly, after that discount is applied, the defendant is sentenced to 20 months’ imprisonment.