HKSAR v. Trang Van Chuong

DCCC 967/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 967 OF 2015

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REASONS FOR SENTENCE

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Introduction

1.On 30 December 2015, the defendant was convicted on his plea of one charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

Facts

2.On the afternoon of 17 October 2015, a police officer saw the defendant standing at the junction of Nam Cheong Street and Fuk Wa Street, Sham Shui Po, Kowloon, looking at the handbags of passers-by.  The defendant was seen following a female person and, at one point, inserting his left hand into the right front pocket of her jacket to take away her mobile phone (which was worth some $3,500).  Having pulled the mobile phone free of a wire, the defendant put the mobile phone into the left rear pocket of his trousers.  The officer took action, arrested the defendant, and recovered the mobile phone.  Under caution, the defendant said he had stolen the mobile phone out of greed.    

Mitigation

3.The defendant was born in Vietnam and is now 50 years of age.  Educated to lower secondary level, he was unemployed at the time of the present offence and was living on a social allowance.  He has 20 criminal conviction records involving altogether 24 charges, 21 of which were offences of dishonesty. According to his antecedent statement, the defendant is single and has no fixed abode.  He was last convicted, on his own plea on 21 October 2013, of the offence of attempted theft for which he was sentenced to 20 months’ imprisonment.

4.In his plea in mitigation, Mr Bill Tong, solicitor appearing for the defendant, submits that the defendant has committed the offence due to stupidity but was co-operative upon his arrest.  Mr Tong refers to the case of HKSAR v Chan Man-wai (transl.) HCMA 18/2010, a case in which a recidivist pickpocket offender was sentenced to 14 months’ imprisonment on a plea of guilty to yet another pickpocket offence.  Mr Tong urges the court to adopt a starting point between 21 and 24 months’ imprisonment in the present case.

Discussion

5.There does not appear to be any aggravating feature inherent in the circumstance of the pickpocket offence committed by the defendant in this case. There is little dispute, however, that he is a recidivist.  If it appears to the court that the level of sentences the recidivist has received for his previous, repeated offending has failed to deter him from further offending, it is open to the court to adopt a higher starting point on the basis of recidivism.  However, the court must always be vigilant to the principle that the offender must be sentenced for the offence with which the court is concerned, and not for his past offending.  The sentence must reflect the severity of the offence before the court.

6.In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the defendant stole the mobile phone of a lady at the junction of Argyle Street and Sai Yeung Choi Street, Mong Kok.  He was at the time of his sentence 34 years old and had 27 conviction records spanning some 15 years involving 35 offences of which 17 had been for theft or attempted theft.  The Court of Appeal laid down the sentence guideline for a fresh offender after trial, namely, 12 to 15 months’ imprisonment, adopted a starting point of 15 months’ imprisonment having regard to the circumstance of the offence committed by the defendant in that case, and then enhanced it by nine months on account of recidivism.     

7.In the instant case, there is no reason not to follow the approach adopted in HKSAR v Ngo Van Huy (supra).  The appropriate starting point is therefore 15 months’ imprisonment which is enhanced by six months to 21 months on the basis of recidivism.  The defendant is entitled to the usual one-third discount for his guilty plea, resulting in a final sentence of 14 months’ imprisonment. The court considers this level of sentence is quite sufficient for an offence committed by a persistent offender, involving property worth several thousand dollars, which has, as it turned out, been recovered.

Conclusion

8.In respect of the offence of which he stands convicted, the defendant is sentenced to a term of imprisonment of 14 months.