HKSAR v. Vu Van Thuy

DCCC 1110/2020

[2021] HKDC 691

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1110 OF 2020

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REASONS FOR SENTENCE

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1.Mr Vu pleaded guilty before me to one charge of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. The particulars are that he, on 14 September 2020, in Hong Kong, having entered as a trespasser part of a building known as the “Tai May Company”, Ground Floor and Mezzanine Floor, No 972 Canton Road, Mong Kok, Kowloon, stole therein cash of $1,900 Hong Kong currency and one mobile phone.

Facts admitted by Mr Vu

2.The subject company is a laundry shop.  On 14 September 2020, at around 5:27 am, Mr Vu entered the shop as a trespasser and opened and closed all the drawers thereat, and searched around and took items from some of the drawers and placed them in the pockets of his pants and in his sling bag.

3.The shop owner later returned to find cash of $1,900 and a “Samsung” mobile phone worth $2,000 missing.

4.A glass pane on the window of the mezzanine floor of the shop was found to have been cut open.  The repairing cost amounted to $200.

5.Police lifted fingerprints from the shop which led to the arrest of Mr Vu on 27 October 2020.  On the same day, Mr Vu was interviewed on video and he said the following under caution:-

(a)  He went to the shop to steal money for buying food;

(b)  He had used up the stolen cash of $1,900 for food;

(c)  He sold the “Samsung” phone that he had stolen for $300 which he also spent on food; and

(d)  He entered and exited the shop via the same window.

Criminal record

6.Mr Vu has 2 previous convictions one of which (in 2019) is similar.  For that burglary, he was sentenced on 5 July 2019 to a term of 24 months and 3 weeks’ imprisonment.

Antecedents

7.Mr Vu is aged 30 (29 at the time of the offence), born and educated to F5 level in Vietnam.  He is the holder of Form 8 recognizance, unemployed.  Mr Vu lived with his common law wife and one son (aged 4) in her private flat in Tuen Mun.

Mitigation

8.Mr John Hemmings of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Vu.

9.The following is a summary of the mitigation submissions.

10.Mr Vu is a refugee from Vietnam.  He has lived in Hong Kong since 2015 as a Form 8 holder.  Prior to arrest, Mr Vu was cohabiting with a Hong Kong resident and their 4-year-old son.  She was unable to work and because of his immigration status, the family was in need of money.

11.Mr Vu maintained that the theft was not premeditated and was the result of a momentary temptation.

12.Mr Vu pleaded guilty and he admitted his guilt as soon as he was arrested.  He is aware that because of his Form 8 status, his sentence may be enhanced.

13.Mr Hemmings urged the court not to enhance the usual starting point by more than 3 months and to afford Mr Vu the full 1/3 discount.

14.Upon enquiry by the court, Mr Hemmings could not assist on why Mr Vu was far away from his Tuen Mun home in the small hours of the day of offence. However, Mr Hemmings was able to tell the court that Mr Vu relied for his living on the stipend from the government.

Sentence

15.The usual sentence after trial for a burglary of non-domestic premises is 2½ years’ imprisonment.

16.Despite what was mitigated on his behalf, I am not satisfied this was an opportunistic burglary.  There was simply no other reason why he was in Canton Road in the small hours of the day.

17.It is obvious that Mr Vu committed the present offence soon after release from prison for the last conviction of a similar offence.  This factor, coupled with what was submitted as his means of living, forced me to the conclusion that Mr Vu’s chances of re-offending are high.  There is of course another aggravating factor of Mr Vu being a Form 8 recognizance holder.

18.Taking all these into consideration, I shall enhance the starting point by 6 months but I will give him the customary 1/3 discount in sentence for his early plea.  There are no other effective mitigating factors.

(Mr Vu, please stand)

19.Mr Vu shall go to prison for 24 months.