HKSAR v. Nguyen Anh Tuan (also known as Yuen Ying Chun)

DCCC 146/2021

[2021] HKDC 541

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 146 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of theft, contrary to section 9 of the Theft Ordinance[1].

2.The theft is one of pickpocketing.  Full particulars of the offence are set out in the summary of facts admitted by the defendant today. 

3.In summary at around 14:45 hours on 9 November 2020 Miss Lin, aged 14, was shopping with her friend in In-Citi shopping centre in Yuen Long when the defendant stole her blue “Huawei” mobile phone, valued at $2,500, while she was travelling on an escalator.

4.Miss Lin remembered that before going on the escalator she had checked her mobile phone after which she put the phone in her jacket pocket.  Miss Lin only became aware her mobile phone had been stolen when a female approached her on the second floor and said her phone had been stolen by a male.  Miss Lin then gave a chase but to no avail[2].

5.CCTV footage of the shopping centre captured the defendant stealing the mobile phone from Miss Lin’s jacket pocket when Miss Lin was going up the escalator.  Four screen captures have been submitted to court which show the defendant following Miss Lin up the first escalator (photographs 1 & 2); continuing to follow Miss Lin up the second escalator at which time he steals the mobile phone (photograph 3) and after stealing the mobile phone turning round and walking down the escalator (photograph 4).

6.After returning home and informing her family what had happened Miss Lin together with her uncle made a report to the police.

7.The defendant was arrested on 11 November 2020.  Under caution the defendant admitted stealing the mobile phone out of greed from a girl in school uniform and selling the mobile phone for $800 to a telecommunication shop in Yuen Long.

8.Mr Fung, the person-in-charge of the telecommunication shop, identified the defendant as the man who sold a blue “Huawei” mobile phone to him on 9 November 2020 for $800.  Mr Fung later sold the phone for $950.

Mitigation

9.In passing sentence, I have carefully considered the oral and written submissions of Mr Lee, including that the defendant, who is 57, came to Hong Kong from Vietnam in 1987, is divorced and is a casual cleaning worker[3]. 

10.I take into account the defendant’s cooperation on arrest[4].

Guidelines

11.In HKSAR v Ngo Van Huy the Court of Appeal confirmed the guideline sentence for pickpocketing after trial is 12 to 15 months for a first time offender, where there are no aggravating features[5]. 

12.In passing sentence I have also considered the cases referred to by Mr Lee[6]. 

13.In determining where in the range of 12 to 15 months a sentencing court should commence will depend on the facts of the case including the circumstances of the theft; the value of the property stolen; the age or vulnerability of the victim and the expertise used in the theft. 

14.In HKSAR v Liu Lin Feng the Court of Appeal held that a starting point  of 15 months’ imprisonment was appropriate for theft of a mobile phone[7], the same starting point as in Ngo Van Huy, which also involved theft of a mobile phone.

15.I am satisfied a starting point after trial of 15 months’ imprisonment is appropriate. 

16.Aggravating features include where the offence is committed in a place in which the public is at particular risk.  Mr Lee accepts that shoppers in shopping centres are vulnerable to this type of offence[8].  I enhance the starting point by 3 months to 18 months’ imprisonment.

17.The fact an accused is a persistent offender is an aggravating feature.  The defendant has 28 previous convictions with 26 offences of dishonesty, 10 specifically stated to be pickpocketing.  The defendant last appeared in court on 31 December 2018 when he was sentenced to a total of 22 months’ imprisonment for two offences of pickpocketing. 

18.By reason of the defendant’s persistent offending I am satisfied the starting point is to be increased by 9 months to 27 months’ imprisonment.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 18 months’ imprisonment.