HKSAR v. Le Duc Dung

DCCC267/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 267 OF 2010

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Reasons for Sentence

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1.The Defendant pleads guilty to one count of theft. This was a pick-pocketing case. At about 4.53 pm on 3rd February 2010, a police officer was patrolling in the subway across Pei Ho Street and Apliu Street, Sham Shui Po. He saw the Defendant approaching the victim from behind at the entrance of the subway near Apliu Street. The Defendant put his hand into the right pocket of the jacket worn by the victim and stole a mobile phone. The Defendant then placed the mobile phone into his right front pocket of his pants and walked away. The whole incident was witnessed by the police officer, and the Defendant was arrested later.

2.The Defendant is aged 52. He is a Vietnamese coming to Hong Kong as a refugee in 1987. He has an appalling criminal record with 38 convictions, 13 of those are related to theft with 5 specifically related to pick-pocketing offences. He is divorced. His son and his wife have emigrated to Denmark. He lives by himself in Hong Kong, and prior to his arrest he was a casual labourer earning about $4,000 a month. The Defendant’s father died in Vietnam, and as a result he wanted to get some money to go back to Vietnam to pay respect to his father.

3.Pick-pocketing is a serious offence, and there are established guidelines for this sort of cases. In fact, I find the facts of the present case very similar to those in the case of HKSAR v Ngo Van Huy (unreported) CACC107/2004. In that case, the Court of Appeal approved that the customary sentence for a pick-pocketing offence should be in the region of 12 to 15 months. The Court of Appeal therefore adopted a starting point of 15 months' imprisonment in that case. The Court of Appeal increased the sentence by 9 months to take into account that the Defendant was a habitual offender. The Defendant there had 35 previous convictions, with 17 related to theft or attempted theft offences.

4.The Court of Appeal also found that there was an aggravating feature, that the offence was committed in a crowded area. The Court of Appeal considered that the junction of Argyle Street and Sai Yuen Choi Street in Mongkok is a very crowded part of Hong Kong, particularly at that time of the evening. The Court of Appeal therefore added three months, and the total starting point was 27 months' imprisonment in that particular case.

5.In my judgment, the facts of this case are very similar to those in Ngo Van Huy. However, I am not so sure whether that part of Apliu Street in the subway was a crowded area, and also the present offence was not committed in the evening as in the case of Ngo Van Huy.

6.In such case, I adopt a starting point of 15 months' imprisonment. As in the case of Ngo Van Huy, I increase the starting point by 9 months to take into account that the Defendant is a habitual offender. The total starting point is therefore 24 months' imprisonment.

7.Giving the Defendant one-third discount for his plea of guilty, the sentence is reduced to 16 months' imprisonment.