HKSAR v. Nguyen Van Long (also known as v. Van Long, Mo Man Lung and Yuen Man Lung)

DCCC 296/2020

[2020] HKDC 524

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 296 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of theft [1].  This is a pickpocketing case which took place outside “The One” of Nathan Road in Tsim Sha Tsui.

Summary of facts

2.At about 1800 hrs on 3 March 2020, Ms Wong Wai Yee Vivian (PW1) was shopping outside “The One” in Tsim Sha Tsui.  Suddenly, PW1 felt the right pocket of her jacket containing a mobile phone being touched. She immediately looked to her right, and saw a male (later identified as the defendant) standing on her right and holding her mobile phone with his right hand.  PW1 then grabbed her mobile phone back from the defendant and shouted for help.  The police was subsequently alerted.

3.Under caution, the defendant admitted, with the assistance of an interpreter, that he stole the mobile phone out of greed.

The defendant’s background and mitigation

4.The defendant is now 48 years old.  He came from Vietnam in 1990s and educated up to primary school level in Vietnam.  He is single.  He told that Court that he worked as a casual construction worker earning about HK$2,000 per day before he was arrested.

5.He was holding a Hong Kong identity card.  At the time of the offence as he was recently released from prison, he was given a “Form 8 recognizance” by the Immigration Department.

6.The defendant has 31 previous criminal records involving 39 offences which included 25 theft related offences, 8 of which are specified as “pickpocketing”.  His last conviction record is dated May 2019.

7.The defendant appeared in person today, told the Court that he wanted to get back his Hong Kong identity card so that he can work again as soon as possible.  He asked the Court to sentence him leniently.

Consideration of sentence

8.The Court of Appeal has set out quite clear sentencing guideline on pickpocketing.  In the case of HKSAR v Ngo Van Huy [2], in which it is said that the usual starting point for a first offender of pickpocketing without aggravating features should be 12 to 15 months’ imprisonment.

9.In the present case, since PW1 suffered no loss of property and that there was no evidence showing premeditation or the defendant being part of a syndicate, I adopt a starting point of 12 months’ imprisonment.

Persistent reoffender

10.However, the defendant in the present case is undoubtedly a recidivist.  As the Court of Appeal has said in HKSAR v Lau Tsz Ho [3]:

“18. It is well established that the fact that a defendant is a “persistent re-offender” is an aggravating factor that entitles the court to adjust upward the appropriate starting point of his sentence (see R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Chan Pui Chi [1999] 2 HKLRD 830). The reason for this is because the applicant has shown by his conduct a need for greater personal deterrence and a need for the court to give greater prominence in its sentence to protection of the community from the offender’s criminal activity. It has nothing to do with again punishing the offender for past criminal acts. Of course, if the enhancement is excessive then the aggrieved offender may well feel that that is precisely what has happened to him.”

11.In view of the long history of theft related convictions of the defendant, particularly the 8 previous criminal records of pickpocketing, I would enhance the starting point by 3 months’ imprisonment, arriving at a starting point of 15 months’ imprisonment.

12.As regards the defendant’s status of “Form 8 recognizance” holder, I am aware of the sentencing remarks given by the Court of Appeal in the case of HKSAR v Shah Syed Arif [4] where the Court said that the defendant being a “Form 8 recognizance” holder, seeking political asylum in Hong Kong at the time of the offence, is an aggravating factor.

13.However, upon clarification, I understand that the defendant is not of that kind of special category.  In that case, I am not going to apply those sentencing guidelines to enhance the defendant’s sentence further.

14.In light of the defendant’s timely guilty plea, he is entitled to the full one-third discount, the sentence is therefore reduced to 10 months’ imprisonment.