HKSAR v. Vu Van Toan

DCCC873/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 873 OF 2011

--------------------------

--------------------------

-------------------------------

Reasons for Sentence

-------------------------------

The Charge and the Facts

1.The Defendant pleaded guilty before me to one charge of attempted theft, contrary to section 9 of the Theft Ordinance, Cap. 210, and section 159G of the Crimes Ordinance, Cap. 200.

2.The facts were simple. In the afternoon of 11 July 2011, while PW1 was walking along the junction of Sai Yeung Choi Street South and Argyle Street, Mongkok, the Defendant tailed behind her and put his hands into the shoulder bag which PW1 was carrying. As witnessed by a passer-by, the Defendant then attempted to take out an iPhone from inside PW1’s bag but was unsuccessful. The Defendant tried again but was also unsuccessful. At this juncture, PW1 turned around and saw the Defendant. The Defendant then fled but was subsequently subdued by PW1 and the passer-by.

Mitigation

3.The Defendant is now aged 42 and was educated up to Form 2 level. He came to Hong Kong illegally in 1988 but is now a Hong Kong resident. He is alone in Hong Kong as all his family members, including his parents and siblings, are in Vietnam. At the time of his arrest, the Defendant was unemployed and had been receiving public assistance in the sum of HK$3,000 per month. He has stomach bleeding problem since 2008 and requires medication regularly.

4.The Defendant has been before the court on 26 previous occasions with 27 convictions. 19 of those are theft-related offences, including 8 pickpocketing convictions, the most recent one being in July 2009 in respect of which he was sentenced to a term of 20 months. He was last released from the prison in June 2010.

5.In mitigation, it was said that the Defendant committed the present offence as he had great financial problems. However, he is remorseful and has pleaded guilty to the charge. Mr. Tang for the Defendant told the court that as the Defendant’s mother is suffering from cancer and is at the terminal stage, he is determined to turn over a new leaf and to visit her in Vietnam once he is released from the prison. Mr. Tang also emphasized that no weapon was used in this case, that the Defendant acted alone at the time, and that the victim did not suffer any loss. Mr. Tang therefore asked, on behalf of the Defendant, for a lenient sentence.

Sentencing Considerations

6.This attempted theft is of the pickpocketing type. In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal laid down the guidelines and principles for sentencing this type of offence and observed that theft by pickpocketing is the type of offence that society severely and rightly condemns for the offence could be committed with relative ease but would cause a significant degree of inconvenience to the victim, and would also adversely affect the reputation of Hong Kong. The Court of Appeal considers that a guideline sentence of 12-15 months after trial is appropriate for a first time offender, and depending on whether there are other aggravating factors, the sentence could be adjusted accordingly.

The Starting Point

7.Following the above guidelines and principles, I am going to adopt an initial starting point of 15 months for this charge.

8.I note that this offence was committed in Mongkok, which is a busy and usually crowded area. In such a public place, members of the community are at particular risk to fall prey to offenders like the Defendant. For this aggravating factor, I am going to increase the initial starting point by 3 months.

9.Further, I cannot ignore the fact that the Defendant is a repeat offender and has a bad criminal record. He has 8 identical convictions. He was just released last June. It was a pickpocketing offence and he served a term of 20 months. However, within just a year, he is now before this court for having committed yet another pickpocketing offence. Such clearly shows that the Defendant has not been deterred by the previous sentences imposed and this is a matter which I should take into account when passing sentence. Therefore, for the Defendant’s appalling record and the fact that he committed this offence shortly after his release, I take the view that the starting point should be further increased by another 12 months.

10.With the upward adjustments mentioned above, the starting point which I am going to adopt for the charge is one of 30 months.

The Sentence Imposed

11.The Defendant pleaded guilty and he would get a one-third reduction for his plea. Other than this, I do not see any other mitigating factor which would warrant a further reduction in sentence.

12.Factors like the use of a weapon, acting in concert with others, etc, if present, will be aggravating factors which would further increase the starting point. The absence of such is not itself a mitigating factor.

13.30 months reduced by one-third is 20 months’ imprisonment. The Defendant is therefore to serve a term of 20 months for this charge.