HKSAR v. Dang Van Tuan

DCCC 257/ 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 257 OF 2009

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Reasons for Sentence

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The charge and facts

1.D1 and D2 plead guilty to theft by pickpocketing.  At about 1:12 p.m. on 8^th February 2009 on Ground Floor, Metro Harbour Plaza, No. 8 Fuk Lee Street, Tai Kok Tsui, Kowloon, D1 and D2 followed a female victim who carried a bag on her shoulder.  D1 stretched his hand into her bag and took out a wallet.  D1 and D2 then turned around and walked away.  D1 passed the wallet to D2.  D2 wrapped it up with a piece of newspaper.  Their act was witnessed by an off-duty police officer, CHING Kam-kau.

2.The victim realised the loss of her wallet.     CHING approached D1 and D2 to reveal his police identity.  D1 and D2 fled.  CHING grabbed hold of D1.  CHING asked the security guards to report the case to the police.  Two off-duty police officers, LEUNG Tin-lun and LAW Ling-sai heard the yell and chased after D2.  D2 threw the wallet into a flowerbed at Nam Cheong Street just before LEUNG subdued him. 

3.PC 1196 arrested D1.  After caution, D1 said that he committed the pickpocketing because he had no money for a meal.  PC 1359 arrested D2.  After caution, D2 remained silent.  He recovered the wallet from the flowerbed.  He found $80 on D2 during the body search. 

4.The victim identified the $80 and the wallet, which contained an Octopus Card and her identity card as her personal belongings. 

5.It was a Sunday.  D1 and D2 accept in Court that it was crowded though not overwhelmingly so. 

Mitigation put forward

6.D1 is now 38 years of age.  He came to Hong Kong as a refugee from Vietnam in 1990.  His wife, his son, and his father are still in Vietnam.  He was educated up to P5.  He did not have a stable job.  He committed the present offence as the public assistance he got was insufficient to maintain his living in Hong Kong and his family’s living in Vietnam.  He had 20 previous convictions.  He has 10 similar convictions since 1990 up to 2007.   

7.D2 is now 30 years of age.  He is married.  His wife is in China.  She is not working.  He was educated up to P2.  He did not have a stable job.  After he had served time in the Drug Addiction Treatment Centre in 1995, his parents did not admit him back to home.  He committed the present offence as he did not have sufficient money to maintain his living in Hong Kong and his wife’s living in China.  He had 14 previous convictions.  He has 1 previous similar conviction in 1993.    

Principles of sentence

Sentencing pickpocket

8.In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal laid down a guideline sentence of 12 to 15 months for pickpocketing after trial for a first time offender.  A heavier sentence would be imposed where there were aggravating factors (per Ma CJHC, at 7), which included:

(1)  The offence took place in a place in which the public is at particular risk, such as crowded places like the MTR or the race course, crowded shopping areas where the pedestrian traffic is heavy;

(2)  Repeat or persistent offending.

9.In R v Saldana Alca Jose and Anor, CACC 655/1996, two Peruvian pickpockets poured a messy substance onto the victim and stole from him in the ensuing confusion.  Counsel in mitigation submitted that the sentencing judge was wrong to over-emphasize the professional nature of the offence. He accepted that the offence was pre-meditated but argued that it was very primitive.  The Court of Appeal upheld a 4-year starting point.  P. Chan J (as he then was) said: 

12.  In our view, there are degrees of professionalism in the commission of crimes. Whether what is perpetrated can be regarded as primitive is a matter of opinion. Many serious crimes are indeed committed using simple methods. The present offence was clearly organised and planned. It was also in our view a professional job. This must be an important consideration in passing sentence. 

13.  … While we think that on the authorities referred to us, the starting point in this case might seem to be on the high side, it cannot be said, in the light of the aggravating circumstances, that it was wrong in principle or manifestly excessive….

14.  We take this opportunity to indicate that in our view, because of their seriousness, organised crimes of this nature including group pickpocketing even without international ramifications, might in future properly attract a starting point of at least 2½ years’ imprisonment.

Repeat offender

10.D1 is a recidivist offender.  A defendant who has not been deterred by a large number of previous sentence of imprisonment may receive a longer period of imprisonment for a particular offence than a defendant who has a clear record or who has been imprisoned only on few occasions.  In HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, Stuart-Moore VP said:

Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he has already served the penalty, the constant repetition of this applicant’s trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned.  The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest.

We should add that there is nothing original about the notion that a defendant, with previous convictions of the same or a similar kind as the offence for which he is due to be sentenced, may receive a longer sentence than a defendant with none.  If it were otherwise, the man of good character standing next to the recidivist in the dock on a joint charge, with equal culpability for the crime, would plainly have to be sentenced to the same terms of imprisonment subject probably to a small reduction in the case of the former to take account of his good character.  (at 833)

The sentence I pass

10.  In both D1’s and D2’s case, based on the observations in Ngo Van Huy (above) and Saldana (above), there are 2 aggravating factors:

(1)  It took place in a crowded location;

(2)  It involved some planning and a tool (the newspaper to conceal the wallet).

11.In D1’s case, there is the extra aggravating factor of his being a recidivist offender.  In his case, I take a starting point of 3 years’ imprisonment.  I give a one-third discount for his plea of guilty.  There are no other mitigating factors.  I sentence him to 2 years. 

12.In D2’s case, I take a starting point of 2 ½ years’ imprisonment.  I give a one-third discount for his plea of guilty.  There are no other mitigating factors.  I sentence him to 1 year and 8 months.