HKSAR v. Vo Huu Phuoc (also known as Mo Man Fuk)

DCCC 464/2021

[2021] HKDC 969

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 464 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.Full particulars of the offence are set out in the summary of facts admitted by the defendant today.  The theft is one of pickpocketing. 

3.In summary at around 6 p.m. on 4 March this year Ms Ka was shopping in a vegetable shop at No. 85 Kweilin Street in Sham Shui Po when she felt her mobile phone being taken out from her jacket pocket. 

4.Ms Ka turned round and saw the defendant holding her mobile phone.  When Ms Ka shouted for help the defendant fled.  The defendant was however intercepted by a passer-by outside No. 284 Ki Lung Street.  Ms Ka recovered her mobile phone.

5.The police were called and arrested the defendant.  Under caution the defendant admitted stealing out of greed.

Mitigation

6.In passing sentence, I have carefully considered the oral and written submissions of Mr Wong, including that the defendant, who is 61, came to Hong Kong from Vietnam in 1981, is single and relies on social welfare[2]. 

7.Mr Wong submits the defendant acted out of momentary greed whilst under the influence of alcohol[3]. I do not accept the defendant, who is no stranger to pickpocketing, acted out of momentary greed.  Whether or not the defendant was under the influence of alcohol, this is no excuse. 

Guidelines

8.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[4]. 

9.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.  The sentencing court will however need to avoid double counting by taking into account a matter later considered as an aggravating feature [5].

10.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[6], the same starting point as in Ngo Van Huy, which also involved theft of a mobile phone.

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

12.Aggravating features include where the offence is committed in a place in which the public is at particular risk such as crowded shopping areas where the pedestrian traffic is heavy and where the accused is a repeat offender or, worse still, a persistent offender. 

13.Apart from the name of the street and the time, the court is not furnished with any information whether the shop or the street was busy at the time of the theft. Photographs submitted to court are of no assistance there being only one photograph of the shop when the shop was closed with the roller shutter down. 

14.The defendant has appeared in court on 27 occasions amassing a total of 36 convictions with 18 offences of dishonesty, 8 specifically stated to be pickpocketing.  The defendant last appeared in court on 12 May 2016 when he was sentenced to 10 months’ imprisonment for one offence of pickpocketing.  The defendant was released from prison on 26 November 2016[7].

15.Mr Wong submits that considering the last conviction was five years ago in 2016 any enhancement for repeat offending ought not be more than 6 months[8].  I agree.  I am satisfied the starting point is to be increased by 6 months to 21 months’ imprisonment. 

16.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 14 months’ imprisonment.