HKSAR v. Nguyen Xuan Cuong

DCCC 844/2019

[2020] HKDC 380

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 844 OF 2019

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to a charge of "Attempted theft". This is a pickpocketing case which took place in a market building in Sham Shui Po on a weekday morning.

Summary of Facts

2.About 9:50 a.m. on 25 September 2019, Mr. Kwan (PW1) and his mother were shopping at Ground Floor, Pei Ho Street Market in Sham Shui Po.  At that time, it was a crowded public place.

3.Suddenly, PW1 felt his right trouser pocket being touched.  He immediately looked to his right.  PW1 saw a male (later identified as the defendant) having inserted his left hand into PW1's right trouser pocket and pulling PW1's wallet half way out from the pocket.  PW1's wallet contained cash in the sum of $1,100, a credit card, an Octopus card, a driving licence and other items particularized in the charge.

4.PW1 grabbed the defendant's left hand and alerted the Police.  Under caution, the defendant said in Punti that he was in need of money and wanted to steal the wallet.

Mitigation & Sentence

5.The defendant is now 52. He came from Vietnam and is a Hong Kong permanent resident. He has 48 conviction records, which included 29 theft-related offences (5 of which are specified as "pickpocketing"). His last conviction record is dated November 2014. According to his antecedent statement, the defendant was released from prison in March 2015 and has a habit of taking drugs. He is single and has no place to stay.

6.Defence counsel Mr. Cheung fairly accepted that the defendant is a repeated offender of theft-related offences. Mr. Cheung submitted that the present offence is opportunistic in nature; the defendant acted alone and no tools were used. Furthermore, PW1 suffered no property loss.

7.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. In modern Hong Kong, there is sufficient social welfare protection for the poor to meet their basic needs. Being a released prisoner, the defendant must know how to seek help.

8.The nature of this case appears to be pickpocketing simpliciter; however, the defendant being a persistent offender clearly constitutes an aggravating feature. According to the Summary of Facts admitted by the defendant, the crime scene was a crowded public place.

9.I have borne in mind the relevant sentencing authorities[1]. Since PW1 suffered no property loss, I adopt a starting point of 12 months' imprisonment. I will enhance it by 9 months for the defendant's long history of theft-related convictions. I will further enhance the starting point by 3 months for committing the offence in a crowded public place. Thus, arriving at a starting point of 24 months' imprisonment.

10.Owing to the "paper mention" arrangements during GAP[2], the defendant indicated his "not guilty" plea on 16 March 2020. This case was then fixed for trial for 1 day on 14 May 2020. On 17 April 2020, Mr. Cheung wrote to all parties indicating the defendant's intention to plead guilty to the charge. The defendant entered his guilty plea on 14 May 2020. Prosecuting counsel Mr. Lee informed me that after being briefed, he held a conference with the Police; however, no witness summonses were served.

11.Although hardly any time and resources were wasted, the fact remains that the defendant indicated his intended guilty plea after the trial date has been fixed. Hence, he would not be entitled to the full one-third discount. I consider a 25% discount appropriate. His sentence is reduced to 18 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 18 months' imprisonment.

12.The defendant's criminal record is an appalling one. The court can only do so much in deterring a repeated offender by way of a heavy penalty. Whilst the sentence must carry a deterrent effect, it cannot go out of proportion. To live a law-abiding life with dignity or to continue being a criminal is a matter entirely for him.