HKSAR v. Nguyen the Vinh (also known as Yuen Sai Wing)

DCCC 560/2021

[2021] HKDC 1005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 560 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. The particulars of the charge allege that on 17 April 2021, near Shop No MN10 on the 1^st Floor, Pei Ho Street Market in Pei Ho Street Municipal Services Building in Sham Shui Po, the defendant stole one mobile phone belonging to the victim (PW1).

2.According to the facts admitted by the defendant, at around 3 pm on that day, a police officer (PW2)  spotted the defendant acting suspiciously by gazing at the belongings of other pedestrians and kept him under observation.  At about 3:38 pm, PW2 saw the defendant following PW1 near the shop in question. The defendant was seen reaching his right hand into the right pocket of PW1’s dress and stealing a mobile phone therefrom which he then put into his recycling bag.  The defendant was intercepted and the mobile phone was seized from his bag.  PW1 confirmed that the mobile phone was stolen from her.  The defendant was then arrested for theft.  Under caution, he admitted stealing the mobile phone for his own use. 

3.On the next day, the defendant admitted in a cautioned interview conducted at the police station that he had stolen the mobile phone out of greed.  He said he had targeted PW1 because her phone was casually put in the pocket of her dress and could be easily stolen. 

4.The defendant is 55 years old.  He received education in Vietnam up to upper high school level.  In 1989, he sneaked into Hong Kong illegally to escape the bad economic condition in Vietnam.  I am told that he had worked as a labourer in construction sites, a storage worker in supermarkets and a miscellaneous worker for various cleaning companies before.  In 2019, he lost his job due to the general social condition in Hong Kong and COVID-19 and has been unable to find a new job.  He is currently receiving HK$4,500 CSSA per month, from which he uses HK$2,500 to rent a cubicle in a subdivided flat, leaving a meagre HK$2,000 as living expenses.  

5.The defendant has 26 previous criminal convictions involving 31 charges.  Of those 31 charges, 18 related to dishonesty and 13 were for theft. The last conviction was in respect of “Theft (pickpocket)” for which he was sentenced to 8 months’ imprisonment.  The defendant was only released in September 2020 and committed the present offence about six months afterwards. 

6.In mitigation, the defendant’s solicitor, Ms Pauline Lam, stresses the following points:-

(1)  The defendant was co-operative with the police throughout. He did not attempt to run away or struggle when intercepted by PW2. He did not pretend not to speak Cantonese and admitted the offence unreservedly. He later maintained his admission at the police station through a Vietnamese interpreter.

(2)  The defendant committed the offence alone. No equipment was used. There is no mentioning in the Summary of Facts admitted by the defendant if the crime scene was crowded or a busy shopping area. The victim did not appear to be hurt or frightened and no damage was done to her clothing or belongings. The only item stolen was a mobile phone (valued at HK$780), which was recovered and returned and PW1 has incurred no loss.

(3)  The defendant feels sorry and ashamed of his poor criminal record. He realises that he should not inflict crimes on others by pickpocketing and prays for leniency and a chance to reform himself.

7.In the case of Ngo Van Huy[1], the Court of Appeal laid down the guideline sentence of 12 to 15 months of immediate imprisonment after trial for pickpocketing even for a first-time offender having regard to the following features of the offence: the significant degree of inconvenience caused to the victim, the relative ease with which it can be effected by a direct invasion of or about the person and privacy of those minding their business in public places and the adverse reputation that this type of crime collectively brings upon Hong Kong. 

8.The defendant has five previous drug-related convictions between 1993 and 2011 and admits to have the habit of taking drugs in his antecedents statement.  There is however nothing to relate this case to his drug habit and I accept that he stole the phone for his own use out of greed. 

9.Turning to the aggravating features in this case, there was indeed no presence or use of a weapon and the defendant did not commit the offence in conjunction with another as submitted by Ms Lam. 

10.Whilst Ms Lam is correct in saying that the Summary of Facts did not expressly mention if the location was crowded at the time, the timing and setting of the offence cannot be ignored.  3 to 4 pm on a Saturday afternoon was the time when many would shop for their family for the weekend and markets in Municipal Services Buildings are places where shoppers would frequent.  In my view, the timing and setting of the offence in this case reflect the very reasons why the Court of Appeal thought the offence was serious and a heavy penalty called for. 

11.In the circumstances of this case, I adopt a starting point of 15 months and add 3 months on account of the fact that the offence was committed in a place in which the public is at particular risk. 

12.There is no denying that the defendant has a poor criminal record.  He has 18 previous convictions relating to dishonesty including 13 on theft as follows:-

Item	Date of Sentence	Description of Offence	Sentence
1	1989-02-02	Theft (S. 9 Cap. 210)	6 MTH
8	1994-08-22	Attempt Theft (S. 9 Cap. 210)	9 MTH
9	1995-07-28	Theft (S. 9 Cap. 210)	6 MTH SUSP 24 MTH COST $500
12	1999-04-22	Theft (S. 9 Cap. 210)	7 MTH
13	1999-11-05	Theft (S. 9 Cap. 210)	12 MTH
14	2000-09-12	Theft (S. 9 Cap. 210)	10 MTH
17	2003-03-18	Theft (Pickpocket)  (S.9 Cap. 210)	10 MTH
20	2005-05-03	Theft (S. 9 Cap. 210)	12 MTH
21	2006-01-23	Theft (Pickpocket)  (S.9 Cap. 210)	16 MTH
22	2007-02-01	Attempt Theft (S. 9 Cap. 210)	10 MTH
23	2007-09-27	Theft (S. 9 Cap. 210)	2 MTH
24	2008-04-07	Theft (Pickpocket)  (S.9 Cap. 210)	20 MTH
26	2020-04-11	Theft (Pickpocket)  (S.9 Cap. 210)	8 MTH

13.In the case of Tsui Chiu Kwai[2], the Court of Appeal approved an increase of 12 months from the initial starting point for Tsui who had 30 previous criminal convictions involving 32 charges with 21 theft-related and 9 for pickpocketing.  Although the defendant’s record is not as appalling as Tsui, there is still in my view a need to impose a deterrent sentence as in Tsui’s case to protect the society and given the failure of the previous sentences on the defendant to deter him from reoffending.  I shall add 6 months to his sentence.  The defendant should be warned that if he keeps on offending, the court may have to consider stiffer sentence next time.

14.For the above reasons, the sentence of the defendant comes to 24 months[3]. The defendant is entitled to the usual one-third discount on account of his plea. 

15.The defendant is therefore sentenced to 16 months’ imprisonment.