HKSAR v. Nguyen Xuan Cuong (also known as Yuen Kwok Keung and Yuen Chun Keung)

DCCC 1203/2024

[2025] HKDC 282

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1203 OF 2024

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to one count of theft (pickpocketing).

Summary of Facts

2.The Summary of Facts admitted by the Defendant is as follows:

The Incident

(1)  At about 2:10 pm on 12 May 2024, Ms Yuen Yuk-ping (PW1)  went shopping with her 6-year-old son in Shan Shui Po. At the material time, PW1 placed her wallet valued at HKD 12 (Wallet)  inside the left front pocket of her trousers. The Wallet contained cash of HKD 3,000, and adult Octopus card with stored value of HKD 200, a Hung Fuk Tong membership card with stored value of HKD 300 and 2 receipts of PARKnSHOP proof of using food bank coupons valued at HKD 600 (Stolen Properties inside the Wallet).

(2)  At about 3:28 pm on the same day, PW1 and her son went to “Sham Shui Po Gadget Outlet” located at Ground Floor, No 161 Fuk Wa Street, Sham Shui Po, Kowloon (Shop). PW1 needed to hold her son’s hand as the Shop was very crowded at the material time. At about 3:33 pm, PW1 noticed that the Wallet with the Stolen Properties inside the Wallet had gone missing. Case was reported.

(3)  CCTV footage of the Shop captured D acting furtively near PW1, followed PW1 and had some hand movement below PW1’s rucksack at the material time.

Arrest and Caution

(4)  At about 3:50pm on 14 May 2024, PC 18673 (PW2)  and his teammates spotted D at a staircase, close to the rooftop of a building located at No 77 Kweilin Street, Sham Shui Po. PW2 arrested D for “Theft” for the incident. Under caution at the scene, D admitted the offence. he stated that he stole someone’s wallet in the shopping mall; he took away the money inside the Wallet; and he discarded the Wallet. The post-record of the relevant cautioned statement was made in the presence of a Vietnamese interpreter on the same day.

The Offence

(5)  At the material time, D, at the Shop, stole the Wallet and the Stolen Properties inside the Wallet, property belonging to PW1.

The Defendant’s Background

3.The Defendant is 57 years old. He came to Hong Kong when he was 12 years old. He was educated up to primary level. He used to work as a cleaner but was unemployed at the time of the offence.

4.The Defendant has 51 previous convictions, involving 59 offences, 32 of which involved dishonesty (1 for attempted burglary and the remaining for theft; 6 of the theft convictions were recorded to be for pickpocketing). He was last discharged from custody on 26 February 2024 from Hei Ling Chau.

Authorities

5.In HKSAR v Vy Van Kien & Another [1991] 1 HKLR 433, the Court of Appeal laid down sentencing guidelines for pickpocketing. For a first offender, the sentence after trial is 12 to 15 months imprisonment.

6.In HKSAR v Ngo Van Huy[2005] 2 HKLRD 1, the Defendant pleaded guilty to pickpocketing. Since 1989, the Defendant was charged on 27 occasions in relation to some 35 offences. The Judge adopted 27 months as a starting point, reduced it to 18 months on account of the guilty plea, then enhanced the sentence by 6 months to take into account the Defendant’s previous convictions and another 6 months for prevalence. The Court of Appeal held:

(1)  The guideline sentence of 12-15 months’ imprisonment after trial was appropriate for a first offender. This was an immediate custodial sentence, not a suspended one.

(2)  Account must be taken of the existence of any aggravating or mitigating features. These included:

(a)  The presence or use of a weapon (such as a razor blade or knife, which was used to cut open a handbag or intended to be used on the victim);

(b)  The offence was committed in a place in which the public was at particular risk, such as crowded places like the MTR or racecourse, or crowded shopping areas where the pedestrian traffic was heavy;

(c)  Where the offence was committed in conjunction with another offence, the sentence should be higher. Whether the defendant was part of an organized and professional ring of thieves, a substantial increase in sentence might be called for; and

(d)  The defendant was a repeat offender or a persistent one.

(3)  Where there were repeat offences of the same kind, the defendant’s previous record was likely to be an aggravating feature where this demonstrated in particular either the need to impose a deterrent sentence (the previous ones, not having apparently had this effect), or the need to protect society from criminals like him. Where a poor previous record for similar offences existed, the court would be justified in imposing a substantially higher sentence (HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 applied);

(4)  There was a certain amount of double counting in the sentence imposed by the Judge. First, a starting point of 15 months, which was at the higher end of the range, was appropriate. Second, there would be a substantial increase in sentence if 9 months on account of the Defendant’s appalling record for theft, and a further 3 months would be added based on the fact that there was an aggravating feature that the offence was committed in a crowded area.

7.In HKSAR v Chiu Suet Yee Angel CACC 105/2010, 27 October 2020, unreported, the Defendant pleaded guilty to 5 offences of pickpocketing. The Defendant and her boyfriend stole the wallet of an elderly man in a market. Later that day, while still in the market, the Defendant and her boyfriend were seen acting furtively by the police. Upon interception, the police found on the Defendant 4 Octopus cards that she had stolen on 4 separate occasions (Charges 1 to 4). Subsequently, the Defendant admitted helping her boyfriend to steal the wallet. The trial judge adopted a starting point of 30 months’ imprisonment for each of Charges 1 to 4, reduced to 20 months for plea, to be served concurrently. In respect of Charge 5, she adopted a starting point of 36 months, reduced to 2 years’ imprisonment of which 1 year and 4 months was to be served consecutively to the other charges, i.e. a total of 36 months. The Defendant appealed against sentence.

8.The Court of Appeal stated:

“7. … the judge commenced her considerations of the starting point of sentence by reference to the judgment of this court in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 where the court approved the guideline sentence for pickpocketing offences of 12 to 15 months’ imprisonment after trial, a range of sentence originally laid down in R v Vy Van Kien [1991] 1 HKLR 422, and made reference to various factors which would aggravate the sentence and take it above that range. In Ngo Ma CJHC (as he then was)  laid out guidelines (and their rationale)  for pickpocketing offences in the following terms:

9. “In our view, the following guidelines and principles for this type of offence should now be made clear (and it is to be noted they differ somewhat from the way the Judge approached the matter):

(1)  Theft by pickpocketing can be regarded as the type of offence that society severely and rightly condemns. Although in many cases, the value of the items stolen may not amount to much, the significant degree of inconvenience, the relative case 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 a city makes this offence a particularly serious one. It is one which attracts, justifiably in our view, a heavy penalty.

(2)  The guideline sentence of 12‑15 months after trial is therefore appropriate for a first time offender. This is an immediate custodial sentence, not a suspended on.

(3)  Of course, account must be taken of the existence of any aggravating, or particular mitigating, features before the court.

(4)  Aggravating features include:

(a)  The presence or use of a weapon (such as a razor‑blade or knife used to cut open, say a handbag or, worse still, intended to be used on the victim)  : see Vy Van Kien.

(b)  Where the offence is committed in a place in which the public is at particular risk, such as crowded places like the MTR or the racecourse, crowded shopping areas where the pedestrian traffic is heavy.

(c)  f the accused commits the offence in conjunction with another, the sentence should be higher. Where he is part of an organized and professional ring of thieves a substantial increase in sentence may be called for.…

(d)  Where the accused is a repeat offender or, worse still, a persistent one…

It can be seen factors aggravating sentence were stated to include the commission of the offence in crowded public areas (and in the present case the applicant admitted stealing one of the Octopus cards from the San Hui Market; as had been the wallet)  and the status of the defendant as a repeat offender. In respect of that latter aggravating factor the court in Ngo’s case said that substantially higher sentences would be justified, relying on HKSAR v Chan Pui Chi…”

9. The first issue in the present application (in respect of all offences)  is whether the judge was correct in the starting points of sentence she adopted.

10. A preliminary question concerns which matters influence where in the normal starting point range of 12 to 15 months’ imprisonment after trial (before taking into account aggravating factors enhancing that starting point)  a sentencing court should commence.

11. In our judgment that will depend on the facts of the case, that is, the circumstances of the theft itself, other than those matters which may be accounted for later as aggravating factors. Such matters as the value of the property stolen, the age or vulnerability of the victim and the expertise used in the theft will determine at what part of the range the appropriate starting point commences. Each case will be fact sensitive and considerable allowance should be given to the exercise of the sentencing judge’s discretion.

12. In selecting an initial starting point within the 12 to 15 months range, the sentencing court will need to avoid double counting, that is taking into account a matter later considered to be an aggravating factor enhancing the starting point of sentence.

13. In the present case the judge did not specify where in the 12 to 15 months range her considerations commenced. In arriving at a final starting point of 30 months’ imprisonment (after taking into account various aggravating factors)  it can be seen that the judge had doubled the normal starting point, even if her considerations had started at the upper end of the range. We think Mr Lee is right to complain the starting point was manifestly excessive.

14. In the present case there was nothing to suggest, so far as the actual thefts the subject of Charges 1 to 4 were concerned, that there was anything particularly unusual in their circumstances. In our view an appropriate initial starting point would have been 12 months imprisonment. The only aggravating factor in the thefts the subject of Charges 2 to 4 was the applicant’s history of such offences. The 1^st charged offence had the additional factor of being committed in the same crowded market as was the 5^th charged offence.

15. In Ngo’s case the appellant had 17 prior theft (or attempted theft)  convictions. That was thought by the court of appeal to warrant an enhancement of 9 months’ imprisonment. We bear in mind the comment of the court in HKSAR v Duong Van Dung CACC284/2004 at para. 11 that a strict comparison of the number of prior convictions as between cases in assessing the degree of enhancement for a particular offender is unproductive. Prior to the present offences the applicant had seven convictions for theft. In our view those convictions taken together with the present offences warrant an enhancement of 6 months’ imprisonment. Additionally, the 1^st charged offence was committed in a crowded market. That warrants a further enhancement of 3 months’ imprisonment. That is the same degree of enhancement adopted by this court in Ngo’s case for the same factor.

16. Accordingly we think the appropriate starting point of sentence for the 1^st charged offence was 21 months’ imprisonment …”

9.In HKSAR v Wong Kong Sun [2014] 1 HKLRD 622:

(1)  The Defendant was convicted of one count of theft. At about 6 pm in a crowded market, police observed the Defendant following a man (V)  carrying a backpack, unzipping one of its outer pockets and removing something. Upon arrest, police found a cardholder containing two of V’s staff cards in the Defendant’s hand. The Defendant admitted he had stolen the cardholder from V as he had no money. The Defendant had 58 previous convictions, of which 24 were for theft and 6 others for pickpocketing; the last conviction was for attempted theft in 2007. The Judge found that the crime was a chance “basic, simple pickpocketing” in which the Defendant had acted alone without using any implements. Since the Defendant was not a first offender, the Judge indicated that he would adopt a starting point at the top of the 12 to 15 months’ imprisonment range, then enhance it by 9 months for the Defendant’s “appalling” criminal record and a further 3 months because the offence took place in a crowded market place at a busy time of day, and reduced the ultimate starting point of 27 months for plea to a final sentence of 18 months’ imprisonment. The Defendant appealed against sentence.

(2)  The Court of Appeal held:

(a)  The overall enhancement was not disproportionate to the basic starting point and the sentence was not thereby manifestly excessive. Pickpocketing was by its very nature, a sly and furtive offence, which was difficult to detect. The courts must necessarily come down harder on those who made a habit or living out of such conduct: HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 applied;

(b)  However, the offence was found by the Judge to be unsophisticated and opportunistic. The Defendant would not have known what was in the outer pocket of the backpack, and the value of the items stolen was minimal, although their loss would have caused significant inconvenience to V. Given the Judge’s characterization of this offence, starting point at the top of the 12 to 15 months range was not appropriate before a consideration of any aggravating features. The Judge, having adopted a 15 month starting point simply because the Defendant was a recidivist, erred in double counting this factor when assessing an enhancement of sentence based on the Defendant’s criminal record. An appropriate starting point would have been 12 months, which the Judge would have been entitled to enhance by a further 9 months and 3 months to 24 months and reduced for plea.

10.In HKSAR v Tsui Chiu Kwai CACC 452/2011, unreported 25 May 2012:

(1)  On 17 October 2011, the applicant pleaded guilty to a charge of theft (pickpocketing)  and was sentenced to 20 months imprisonment.

(2)  At around 5:40pm on 6 August 2011 in the vicinity of a market, the applicant was observed by a patrolling police officer, removing a roll of banknotes from the trouser pocket of Madame Lau, a woman of 73 years of age, who was shopping in the market. The applicant was seen putting the bank notes into his own trouser pocket and making off. He was immediately intercepted and arrested by the officer. The bank notes, totaling HK$380, were found in the applicants’ trousers and identified by Madame Lau as her property. Under caution, the Applicant admitted the offence.

(3)  The applicant was obviously a drug addict and based on his previous convictions a professional pickpocket. He was 49 years old and had 30 previous convictions, involving 32 charges, 21 of which were for theft and 9 of them were for pickpocketing. His other convictions were, for the most part, related to dangerous drugs. The offence in question was committed less than two months after the applicant was released from prison.

(4)  The Judge took into account that the applicant had acted alone, using no sophisticated methods. It was a crude form of pickpocketing and the amount was small. However, the offence was committed in a busy area and showed signs of being a professional style offence.

(5)  The Judge adopted a starting point of 15 months’ imprisonment. He increased the starting point by 12 months and 3 months in respect of two aggravating factors, namely, the applicant’s poor criminal record for this type of offence and the crowded area where the offence was committed (ie a starting point of 30 months).

(6)  The Court of Appeal upheld the sentence and stated:

“15. The Judge’s initial starting point of 15 months’ imprisonment was, rightly, not the subject of challenge in this application. In Ngo Van Huy, the Court of Appeal laid down sentencing guidelines for pickpocketing offences. The guideline sentence of 12 to 15 months’ immediate custodial sentence after trial was held to be appropriate for first time offenders… As to where within that range the starting point should be is a matter for the Judge’s discretion. In HKSAR v Chiu Suet Yee, Angel … it was held … that the initial starting point will depend on the facts of the case, including matters such as the age or vulnerability of the victim. Here, where the victim of the offence was a 73-year-old woman, the Judge’s choice of an initial starting point of 15 months was entirely appropriate. …

Enhancement on account of previous record

16. In Ngo Van Huy …, identified “[w]here the accused is a repeat offender or, worse still, a persistent one” as being included in the aggravated features which a sentencing judge may take into account …

“We should just elaborate on the aspect of an accused’s previous convictions as being an aggravating feature. It used to be at one stage sentencing policy that a person would not receive an increase in sentence by reason only of a poor record of like offences. … Rather, the accused would simply not receive any discount from which a person of clear record might benefit. This has now changed. Sentencing policy in Hong Kong (and, it should be noted, elsewhere in the world including the United Kingdom and Australia)  recognizes that where there are repeat offences of the same kind, a person’s previous record is likely to be an aggravating feature where this demonstrates in particular either the need to impose a deterrent sentence on the particular accused (the previous ones not having apparently had this effect)  or the need to protect society from criminals like him … . Where a poor previous record for similar offences exists, a court will be justified in imposing a substantially higher sentence…

23. In the circumstances, the Judge was quite right, in our view, to say in sentencing:

“16. So, the defendant is a professional pickpocket, with increasingly lengthier sentences, culminating in 2010 with the sentence of 18 months’ imprisonment from the District Court for Theft (Pickpocketing). …

24. The defendant has a poor criminal record for these offences. The two most recent sentences of 18 months’ imprisonment did not appear to deter the defendant from continuing this form of offending.”

24. Given the defendant’s poor criminal record and the failure of the previous sentences of 18 months’ imprisonment to deter him from re-offending, we are quite satisfied that the Judge was entitled to increase the initial starting point by 12 months in respect of the applicant’s previous record. That this was slightly more than the 9 month increase in Ngo Van Huy’s case is not determinative. There is no authority to support the proposition that an uplift of 9 months is a maximum or that the relevant previous record must be worse than the appellant’s in Ngo Van Huy by a particular factor in order for a larger increase to be applied. In any event, the applicant’s re-offending within two months of his release from prison would independently justify an additional increase to that for being a persistent offender. In HKSAR v Pham Thai Van Bao, unrep., CACC 206/2010, 5.11.10, the Court of Appeal increased a starting point for a sentence for pickpocketing by 3 months to reflect the fact that the applicant in that case had re-offended within two months of his release from a previous sentence for pickpocketing.

29. … There is nothing in Ngo Van Huy that suggests the overall sentence before mitigating factors should not go beyond 27 months’ imprisonment. Each case must depend on its own facts…”

Discussion

11.Counsel submitted that the victim in the present case was not particularly vulnerable. I disagree. The victim was a mother who had to look after a young child. The Wallet was kept in the victim’s trouser pocket. It takes a lot of skill to steal the Wallet without being noticed. This has the hallmark of a professional pickpocketing. By reason of the above mentioned matters, I adopt an initial starting point of 15 months’ imprisonment.

12.The Defendant has appalling record. He is an incorrigible and persistent professional pickpocket. He has previously been sentenced for up to 20 months but that sentence appears to have had no effect of deterrence. The starting point is therefore enhanced by 12 months (i.e. 27 months). There is no dispute that the offence was committed in a very crowded place. This is an aggravating factor and the starting point is further increased by 3 months (i.e. 30 months). The Defendant committed this offence within 3 months after discharge from prison for another theft offence. This warrants a further enhancement of 3 months. In other words, the starting point is 33 months’ imprisonment.

13.The Defendant has pleaded guilty at the first opportunity. The sentence is reduced by one-third to 22 months. Apart from his guilty plea, there are no further mitigating factors. The Defendant is sentenced to 22 months’ imprisonment.