HKSAR v. Le Van Hoa also known as Lee Man Wah

DCCC 187/2020

[2020] HKDC 646

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 187 OF 2020

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Reasons for Sentence

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1.The defendant has pleaded guilty to one count of theft, a pickpocketing offence, committed on 17 January 2020 on an escalator in Pei Ho Street Market, Sham Shui Po, Kowloon. The defendant picked the trouser pocket of the victim whilst travelling on the escalator upwards. He stole the victim’s wallet and in it there was an Octopus card and $1,080.

2.The facts are very straightforward.

3.The victim was shopping in this busy market at about 10 am and had his wallet in his back right trouser pocket.  As he was travelling up an escalator inside the market, he felt a man he later knew was the defendant standing very close to him from behind.  When they reached the top of the escalator, the victim suddenly noticed the defendant rush back down on the opposite escalator.  This made him suspicious and he checked his pocket to find his wallet was missing. 

4.The victim chased the defendant and intercepted him not far away.  He found his wallet in the defendant’s jacket pocket. Nothing was missing.  He called the police and when the police arrived the defendant was cautioned.  He admitted that he had stolen the victim’s wallet out of greed as he had no money for food.

5.I have heard everything that can be said on behalf of the defendant in mitigation.

6.The defendant has an exceptionally poor criminal record.  He actually has 58 criminal convictions from 44 court appearances.  22 of those convictions are theft offences.  He has been sent to a Drug Addiction Treatment Centre three times.  His first conviction was in 1984, when he was 18 years old and was a robbery charge.  His last conviction was a pickpocketing charge and on 3 January last year he was sentenced to 18 months’ imprisonment after a plea of guilty. 

7.In fact, he has been sentenced by the District Court to imprisonment for pickpocketing on a total of five previous occasions. This is the sixth.  In those five previous cases, the starting point for a single count of pickpocketing with similar facts has ranged from between 24 months and 30 months’ imprisonment.  Essentially, the defendant has a 35-year history of criminal activity in Hong Kong.

8.The defendant is now 53 years old and I have been told has no fixed abode.  He is divorced and is a street sleeper.  He is a Vietnamese national who has been in Hong Kong for over 40 years.  He was unemployed at the time of the offence.  He sometimes gets work on a casual daily basis on construction sites, earning about $500 a day.  At the time of this offence, he had been unable to find any work, had no money and was hungry, which led to this offence. 

9.I have taken into account the authority of HKSAR v Ngo Van Huy, CACC 107/2004, where the Court of Appeal was of the view that a guideline sentence of 12 to 15 months after trial is appropriate for a first-time offender.  That higher court went on to set out what factors could be considered aggravating, which would increase that starting point. 

10.The defendant accepts and knows that there are guidelines for pickpocketing that means an immediate custodial sentence is inevitable. 

11.He also knows that there are aggravating features here, because they have been applied to him in the past in similar cases.  The fact he is a recidivist is an aggravating factor and can enhance any starting point.  The fact that this pickpocketing offence was committed in a crowded place, a busy food market in Sham Shui Po, where other shoppers are more at risk, is the other aggravating factor.

12.The defendant is a professional pickpocket and persistent offender.  Taking his previous criminal record and history into account, the court’s previous deterrent approach is clearly not deterring this defendant.

13.Mr Tam, defence counsel, has urged me to consider his previous sentences and what enhancement was made for similar aggravating factors.  I thank him for his written submissions.

14.Having considered the guidelines, facts of this case, mitigation put forward, and the defendant’s previous criminal record, I do take an initial starting point of 15 months’ imprisonment for this offence.

15.I will add to that starting point 12 months for his recidivism.  This substantial increase is required to reflect the defendant’s persistent re-offending. 

16.The choice of the crowded market to prey on victims will attract a further 6 months.  The defendant knows from previous sentences that preying on victims in such a crowded place does attract an enhancement of sentence.  He cannot plead ignorance.

17.The starting point therefore becomes 33 months’ imprisonment. The defendant pleaded guilty at the earliest opportunity and is entitled to a discount of 11 months.

18.After that discount is applied, the defendant is sentenced to 1 year and 10 months’ imprisonment for this offence.