HKSAR v. Vo Truong Han

DCCC 1172/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1172 OF 2016

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REASONS FOR SENTENCE

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1.After trial, defendant was convicted of a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

Facts

2.The present case involves a theft case that took place at Uniqlo, Level 3, APM Millennium City 5, No 418 Kwun Tong Road, Kwun Tong, Kowloon, in Hong Kong.  According to the facts of the case, defendant committed the theft together with three other unknown persons at about 2020 hours on 26 October 2016.

3.During the course of the theft, this group of people made use of a rucksack fitted with a tinfoil and placed four stolen lady garment jumpers into the rucksack in order to avoid being detected by the security alarm system installed in the shop.  Defendant together with one of the wanted persons were responsible for placing the garments into the rucksack carried by the wanted person.  Afterwards, the one carrying the rucksack left the shop without payment and a female security guard (PW1), noticed the activities of this group of persons inside the shop and she followed the wanted person outside the shop.  As a result, the wanted person carrying the rucksack was able to run away, leaving behind the rucksack. 

4.When PW1 later picked up the rucksack and went back to the shop, she bumped into defendant who was just leaving the shop.  After a brief chase, defendant ran away but was subsequently intercepted by some passersby and security officers in the shopping mall and was later arrested by the police.

Criminal Record and Background of the Defendant

5.Defendant is a Form 8 holder coming from Vietnam.  He entered Hong Kong in November 2015 and sought asylum.  At the time of the offence, he was on recognizance under section 36(1) Immigration Ordinance, Cap 115, Laws of Hong Kong.

6.Defendant had worked as a barber and he had only received a Form 1 secondary level in Vietnam.  All his family members are in Vietnam and so he has no family member in Hong Kong. 

Mitigation

7.In mitigation, counsel for defendant has stressed the fact that the value of the stolen property in this case is small, it is only $596 in total, and she therefore urged the court to distinguish this case from the other more serious case involving groups of foreigners coming to Hong Kong with the specific aim to commit a crime and steal valuable properties from the shop.

8.I have inquired with the prosecutor on fiat as to why this case has to come before the District Court and I was told that the advising counsel from the DoJ was of the view that being a Form 8 holder, what defendant had done in Hong Kong – viz, to commit a crime together with a group of people - is a serious aggravating factor that the court should take into account because in so doing, obviously he was abusing the hospitality and the freedom granted to him by the Government of Hong Kong. (See HKSAR v Sandagdorj Altankhuyag & Another (unreported), CACC 45/2013)

Sentencing Consideration

9.The case before me is not a simple shop theft committed by a single defendant.  But even if this is a case committed by a group of four persons with some levels of planning and acts of premeditations, the fact remains that this case involves, as it were, a shop theft of only a total of about $600 value of property.  Even with the aggravation that has in mind by the prosecution that defendant had committed the offence in Hong Kong while his asylum application was being processed coupled with the fact that he also committed the offence in conjunction with three other people, I do not regard that this case was serious enough to be tried in the District Court and the proper venue for trial should be in the Magistrate Court because the sentence will in no way be more than 2 years.

10.I have referred myself to a Magistracy Appeal case of HKSAR v Nguyen Van Thang (unreported), HCMA 10/2017, a Chinese judgment in which the above aggravating factor was considered and there was a reference of altogether 11 cases submitted by the prosecution concerning shop theft involving Form 8 holders.  According to the summary of the court, the average of sentencing starting point is between 4 and 9 months. (See paras 9 & 10 of the Judgment)

11.Of course, in each case, the fact is different and the background of the defendant is also different, but when I compare this case to those cases which have been set out in the table as listed in paragraph 9 of the Judgment, I am of the view that the proper starting point of this case, had it been committed by a single defendant, should be 6 months’ imprisonment.

12.I would further enhance the sentence by 2 months because of the fact that this case was committed together with other people and with elements of planning and premeditation.  I would also finally increase the sentence by a further 1 month because of the fact that defendant himself is a Form 8 holder and he committed this offence while his torture claim is being processed.

13.As a result, the final sentence that I would impose on this defendant is one of 9 months’ imprisonment.