HKSAR v. Tran Van Chuong

DCCC 251/2022

[2022] HKDC 1223

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 251 OF 2022

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REASONS FOR SENTENCE

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1.Mr Tran pleaded guilty before me to one charge of Theft, contrary to section 9 of the Theft Ordinance, Cap 210. Particulars are that he, on 16 December 2021, outside Ground Floor, No 261 Yu Chau Street, Sham Shui Po, Kowloon, in Hong Kong, stole one mobile phone with one phone case, property belonging to Chan Chun Hung.

Facts admitted by Mr Tran

2.On 16 December 2021, at about 11:30 am, when one Chan was pushing a trolley outside No 261 Yu Chau Street, he felt his waist bag being pulled twice.  He turned around and saw Mr Tran taking his mobile phone (with phone case)  out of his waist bag.  Chan took it back from Mr Tran and asked if he was stealing.  Mr Tran denied and tried to flee.  Chan stopped him and called the police.

3.Police arrived shortly and arrested Mr Tran.  Under caution, Mr Tran admitted he had stolen the phone out of greed.

Criminal record

4.Mr Tran has 32 previous convictions 25 of which are similar.  His last conviction was for breach of condition of stay recorded in September 2021 for which he was sentenced to serve 16 days in prison.

Antecedents

5.Mr Tran is aged 57 (56 at the time of the offence), educated to secondary level in Vietnam.  He was unemployed at the time of arrest.  Mr Tran was last released from prison in September 2021.  After release, he lived alone.

Mitigation

6.Mr Albert Cheung of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Tran.  The following is a summary of the mitigation submissions.

7.During his last period of imprisonment before his arrest, Mr Tran forgot to apply for an extension of stay as a non-permanent Hong Kong resident.  As a result, his Hong Kong Identity Card was seized and he was released from prison as a Form 8 Recognizance holder which meant he was unable to work and unable to make ends meet.  He committed the present offence out of foolishness when the opportunity presented itself.

8.Mr Tran admitted the offence on arrest and pleaded guilty at the earliest opportunity.  Mr Tran is remorseful.  The stolen phone was recovered and the victim did not suffer any loss.

9.Although custodial sentence is unavoidable, Mr Tran asked the court to be as lenient as possible.

10.Upon enquiry, Mr Cheung submitted that the reason why Mr Tran was in possession of a Form 8 Recognizance was different from that relating to the defendants in the other cases, namely they being torture claimants.  As such, Mr Cheung asked me not to enhance the starting point.  Mr Cheung elaborated that in the case of Mr Tran, he was a non-permanent Hong Kong resident and had a renewable HKID card issued to him; that all Mr Tran had to do was to renew it from time to time as a matter of procedural formality.  In fact, according to Mr Cheung, Mr Tran has now made the application to the Immigration Department for renewal and has received a phone call asking him to collect the renewed HKID card.

Sentence

11.I have had regard to a “Restricted” Memo dated 24 October 2022 issued by the Immigration Department relating to the immigration status of Mr Tran kindly supplied to me by the prosecution.

12.After some discussion between the court and the prosecution, the latter does not insist on an enhancement of sentence on account of Mr Tran being a non-torture claiming Form 8 Recognizance holder.  I am not minded to enhance the sentence on this ground.

13.I have had reference to the Reasons for Sentence (in Chinese)  delivered by Judge Stanley Chan on 14 December 2020 against Mr Tran for a similar case involving 3 mobile phone pickpocketing incidents: DCCC 646/2020 refers.  I derived a great deal of assistance from it.

14.From the above case and from Mr Tran’s dreadful criminal record, it is beyond doubt that Mr Tran is a professional pickpocketing recidivist.  It is no exaggeration to say that he lives by being a thief.

15.In DCCC 646/2020, the learned judge sentenced Mr Tran to imprisonment terms ranging from 16 months to 22 months taking into account the aggravating factors but also giving him the benefit of 1/3 discounts on a plea.  On an application of the totality principle, Mr Tran was sentenced to a total of 24 months’ imprisonment.

16.Obviously, that term has not deterred Mr Tran from committing the same type of offence again.

17.In order to increase the deterrence further, but bound by the fact that Mr Tran, on this occasion, has only been convicted of one charge of theft, I shall adopt a starting point of 27 months’ imprisonment.

18.Because of his plea, the sentence is reduced to 18 months.  I can find no other mitigating factors that can cause another downward change to the sentence.

(Mr. Tran, please stand)

19.The sentence on Mr Tran is therefore 18 months’ imprisonment.