HKSAR v. Dinh Khac Chut

DCCC 1/2021

[2021] HKDC 696

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1 OF 2021

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.The defendant has admitted the Summary of Facts. The theft is a pickpocketing offence and witnessed by a police officer.  He was caught red-handed.

3.On 19 October 2020, at around 10.15 am, police officers on patrol in Sham Shui Po spotted the defendant acting suspiciously. He was staring at the belongings of pedestrians.  He was kept under observation and about 20 minutes later, near the junction of Pei Ho Street and Lai Chi Kok Road, PC15427 saw him use his left hand to remove a mobile phone from a victim’s right trouser pocket.  At the same time, the victim who is 83 years old, felt he was jostled and felt someone remove his phone.  He turned to see the defendant holding his mobile phone.  The defendant was immediately intercepted by the police following him.

4.Under caution later that day, the defendant admitted stealing the mobile phone to sell to buy food.

Mitigation

5.I have heard full mitigation from defence counsel who has said all he can say on behalf of the defendant.  He is 53 years old, came to Hong Kong from Vietnam in 1988.  He was married but since divorced.  He did work on construction sites or as a cleaner.  But in 2016, he suffered a workplace injury and has been unemployed since.  At the time of the offence, he had no income, nor was he receiving any government assistance.  He is also a drug addict.  His explanation for the commission of the offence is two-fold:  To fund his addiction and to feed himself.

6.He is not a man with a clear record.  He has 37 previous convictions from 30 court appearances.  Five convictions are related to possession of dangerous drugs and 23 convictions are related to offences of dishonesty.  At least six of those convictions are offences of pickpocketing.

7.I have considered the authority of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, and the guideline sentence for pickpocketing after trial being between 12 to 15 months for a first-time offender where there are no aggravating features.

8.Having considered the age of the victim, the expertise used in the theft and the fact it was a mobile phone, which when stolen can cause huge inconvenience to a victim, I am satisfied a starting point after trial of 15 months’ imprisonment is appropriate.

9.In that same authority, the Court of Appeal sets out what constitutes aggravating or mitigating features to be considered relevant to sentencing.  Aggravating factors include where the offence is committed in a place where the public is at particular risk, such as crowded areas or busy streets; and where the defendant is a repeat offender or even a persistent offender.

10.In mitigation, Mr Kelly recognises that the defendant’s persistent offending evidenced in his criminal record is an aggravating factor which will increase the starting point.

11.The defendant is a professional pickpocket and his persistent re-offending is an aggravating factor.  His last conviction was on 18 June 2020 for theft from which he was released from prison on 22 August 2020.  He was arrested for this offence two months later.

12.For this aggravating factor, I am satisfied the starting point should be increased by 9 months to 24 months.  The defendant indicated his plea of guilty at the earliest opportunity and deserves full credit.  The starting point of 24 months is reduced by 8 months to reflect his plea. Accordingly, the defendant is sentenced to 16 months’ imprisonment.