HKSAR v. Nguyen Van Tam also known as Yuen Man-sum

DCCC 1076/2020

[2021] HKDC 527

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1076 OF 2020

________________________

________________________

________________________

Reasons for Sentence

________________________

1.On 20 September, the defendant was observed by a police officer in Nam Cheong Street in Kowloon. He was seen to attempt to steal initially from a lady who had a brown shoulder bag. She had that on her left shoulder and was observing some goods at a grocery store. The defendant unzipped her shoulder bag and took out a long brown wallet with his left hand.

2.Shortly after that occurred, the defendant was intercepted by the police officer who had been observing him.  He admitted stealing the wallet and asked for a chance.  He had not had any opportunity to open the wallet to check the contents before he was arrested. 

3.The contents in fact contained money, some almost $4,000, and various cards, including credit cards, identity cards and social security cards.  The wallet itself was worth about HK$40.

4.Defendant’s background shows him now to be 67 years old; origin from Vietnam; unemployed at the time of his arrest.  He has a health problem - has to walk with a crutch.  He had been a drug addict in the past but I am told he no longer suffers from that problem.

5.As far as his criminal record is concerned, there is an extensive criminal record dating back to 1982, when he was initially convicted of robbery and sentenced to 3½ years’ imprisonment. Since then, he appears to have at least 11 cases of attempted theft.  Six cases are described as pickpocketing, four for attempting to pickpocket, cases of shop theft and the like.  He has been sentenced to a number of sentences of imprisonment, ranging up to 18 months for those offences.  Most recently, in 2019, convicted of offences of pickpocketing theft.  A total of 16 months’ imprisonment served.

6.As far as the defendant’s mitigation is concerned, it is observed that he has pleaded guilty at the first opportunity. He is remorseful.  No loss was suffered by the victim.  No weapons or instruments were used to commit the offence.  No damage to the victim’s property; it was returned to her.  The offence was committed by the defendant on his own.  He has problematic health, especially suffering from pain from his leg problem.

7.As far as the approach to sentence is concerned, the case that indicates the general starting point for sentencing of these offences is the case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, indicating in that offence that the guideline starting point for sentence for this offence shall be between 12 to 15 months’ immediate custodial sentence after trial.  That sentence is subject to increase if there are any of the aggravating factors set out in that offence. 

8.One clear aggravating factor that exists in this case is the defendant’s previous history of a large number of similar offences, which would indicate that the defendant has not been deterred by sentences of imprisonment in the past from continuing to continue with his pickpocketing career.

9.It is, of course, the case that there do not appear to be any other substantial aggravating factors and there is no indication in the statement of facts that this is in itself a crowded area, which would be an aggravating factor.  It appears to have been committed outside a grocery store, but I have no information as to about whether it was an area that was crowded or one where these kind of offences were routinely committed.

10.I shall take an initial starting point for sentencing in respect of this offence at 15 months’ imprisonment, and I shall increase that sentence, having regard to the aggravating factor of the defendant’s previous appalling record for similar offences, and that increase in sentence will be of a substantial nature because of the nature of the defendant’s previous record. 

11.I shall increase that sentence of 15 months by 12 months to a starting point of 27 months’ imprisonment for the defendant. 

12.He is, of course, entitled to a one-third deduction from that for his plea of guilty, leaving a final sentence of 18 months’ imprisonment. 

13.That will be the sentence I will impose for this offence.