HKSAR v. Vy Van Kien

DCCC 70/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 70 OF 2011

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Reasons for Sentence

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Introduction

1.The Defendant is convicted upon his own guilty plea of a charge of attempted theft, contrary to section 9 of the Theft Ordinance and section 159G of the Crimes Ordinance.

2.The facts admitted by the Defendant reveal that:

(i)  On the afternoon of 15^th December 2010, Miss Kwok Shen Ana (“PW1”) was walking along the junction of Tung Yan Street and Yue Man Square, Kwun Tong with a friend. PW1 suddenly felt that someone inserted his hand into her handbag. PW1 immediately turned around and found that the Defendant was then holding PW1’s wallet with the Defendant’s left hand. At that time, PW1’s wallet was completely out of her handbag;

(ii)  The Defendant immediately put PW1’s wallet back into her handbag. PW1 and her friend got hold of the Defendant but the Defendant struggled and tried to flee;

(iii)Eventually the Defendant was arrested at the scene; and

(iv)  PW1 did not suffer any loss; but she sustained minor abrasion on her left middle finger whilst the Defendant was struggling with her.

Previous conviction record and antecedent

3.The Defendant has 24 previous convictions since January 1987, out of which 19 are convictions of theft or attempted theft sentenced in 1987, 1988, 1990, 1992, 1993, 1994, 1995, 1999, 2001, 2003, 2004, 2005, 2006, 2007 and 2009. He was last sentenced in April 2009 for 14 months’ imprisonment for theft (pickpocketing).

4.According to the antecedent statement in relation to the Defendant, the Defendant was born in May 1968 and is now 42 years old. He has received education up to Primary 3 level. He was a construction worker. Prosecuting counsel also informed me that the Defendant was last released in February 2010 from the offence of theft sentenced in April 2009. About ten months later, in December 2010, he committed the present offence.

Mitigation

5.In mitigation, the Defendant’s representative submitted that the Defendant was in financial difficulty, hence the commission of the present offence. I have already indicated that financial difficulty is not a mitigating factor justifying reduction in sentence.

Sentencing authorities

6.In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, it was laid down that the sentence of 12 to 15 months’ imprisonment after trial for a first offender without aggravating factors would normally be appropriate in pickpocketing cases. It was also held that account must be taken of the existence of any aggravating or mitigating factors, including the previous conviction record of the offender.

Sentence

7.In the present case, prosecuting counsel fairly submitted that there was only one aggravating factor, i.e. the Defendant’s 19 previous convictions of theft or attempted theft, but that there was no evidence that the subject location was a crowded place.

8.Applying HKSAR v Ngo Van Huy, the circumstances of the present case would justify a starting point of 15 months’ imprisonment for a first time offender.

9.In light of the Defendant’s appalling previous record for theft or attempted theft, I would make an upward adjustment of 9 months.

10.The total sentence is therefore one of 24 months’ imprisonment. As the Defendant pleaded guilty, I give him 1/3 discount for his guilty plea, thus reducing the sentence to 16 months’ imprisonment. There being no valid mitigating factors justifying further reduction in sentence, the Defendant is sentenced to 16 months’ imprisonment.