HKSAR v. Trang Van Chuong

DCCC 92/ 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 92 OF 2009

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Reasons for Sentence of
D1 on 2^nd Charge

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Charge and facts

1.D1 pleads guilty to a charge of pickpocketing (2^nd Charge). 

2.At about 4 p.m. on 1 December 2008, TANG Nga-ling finished school and walked along Tai Po Road near the junction of Un Chau Street towards Mongkok.  She was listening to music on her mobile phone with an earphone.  The mobile phone was placed inside her left jacket pocket with the string of the mobile phone dangling outside.  D1 suddenly brushed against her left side and used his right hand to get her mobile phone whilst his left hand was disconnecting the earphone from her mobile phone.

3.PC8392, an off-duty police officer, observed D1’s act.  He approached D1 to intercept him.  D1 saw him and dropped the mobile phone onto the ground and ran.  D1 was arrested by him after a chase.  Under caution, D1 remained silent. 

4.TANG identified the mobile phone on the ground to be hers.   

Mitigation put forward

5.D1 is now 44 years of age.  He came to Hong Kong from Vietnam in 1988.  He has an aged mother and an elder brother in Vietnam.  He has to send money over to support their living.  As he is always jobless, he commits offences from time to time.  He has 16 previous convictions for theft, the last of which was in February 2008.  He was released from jail in October 2008.   

6.He had pleaded guilty to another pickpocketing of a mobile phone which happened on 8 November 2008, namely the 1^st Charge in the present case.  He was sentenced to 16 months’ imprisonment. 

Sentencing principles

Guidelines for sentencing pickpockets

7.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. 

Persistent offender

8.The issue raised by D1’s counsel in mitigation is whether a defendant who has not been deterred by a large number of previous sentences 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.  Mr. Wong in mitigation submits that it should not be the case.  He relies on the High Court appeal decision for sentencing a pickpocket in The Queen v Vy Van Kien [1991] 1 HKLR 422 to support this proposition.  However, that seems no longer to be the position as seen in Ngo Van Huy (above).  Ngo Van Huy had not focused on any detailed reason but a possible reason could be found in the earlier case of HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 where Stuart-Moore VP said at 833:

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. 

Although that case dealt with trafficking in dangerous drugs, there should be no difference in principle for sentencing a pickpocketing offence. 

Present sentence

9.D1 is a persistent offender for theft.  I take a starting point of 2 years’ imprisonment.  There are no mitigating factors besides his plea of guilty, I reduce it to 16 months.

10.Based on totality, I order 8 months of the present sentence to be concurrent with the 1^st Charge.  The remaining 8 months is to be consecutive to the 1^st Charge.