HKSAR v. Chu Van Tuan

DCCC1345/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1345 OF 2011

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Reasons for Sentence

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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 morning of 15 November 2011, PW1, a lady aged 73, was carrying with her a handbag which had a zipped pocket on one side. PW1’s mobile phone, which was attached to a string, was placed inside the pocket. However, part of the string was exposed. At the time, PW1 was walking with her daughter along Lai Chi Kok Road, Sham Shui Po.

3.PW2, a police sergeant who was in plainclothes, saw the Defendant following PW1 and looking around anxiously. PW2 therefore kept the Defendant under observation. Later, PW2 saw the Defendant bending down to unzip the pocket and pull the string a few times, thus exposing part of PW1’s phone. PW2 therefore shouted at the Defendant. The Defendant fled but was stopped by PW2 shortly afterwards. When PW2 revealed his police identity, the Defendant asked for a chance.

Mitigation

4.The Defendant is now aged 42 and is single. He was educated up to primary level in Vietnam. He came to Hong Kong as a refugee in 1988. All his family members are in Vietnam and the Defendant is alone here.

5.At the time of his arrest, the Defendant was unemployed. Mr. Kan, who mitigated on behalf of the Defendant, told the court that owing to his inability to speak fluent Cantonese, the Defendant has been unable to obtain any stable employment and he has only worked as a casual worker. Since 2005, he has been unemployed. Prior to his arrest, the Defendant had been relying on the remittance he received from his family members in Vietnam. 

6.In mitigation, it was said that the Defendant committed the present offence as he had financial problems. It was also said that as the mobile phone was not taken away, the victim suffered no real loss.

Sentencing Considerations

7.This attempted theft is of the pickpocketing type.

8.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. The court observed that theft by pickpocketing is the type of offence that society severely and rightly condemns as 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

9.Bearing in mind the above guidelines and the concerns which the court needs to address for this type of offence, I am going to adopt an initial starting point of 15 months for this charge.

10.Although this offence was committed in Sham Shui Po, the prosecution accepted and informed the court that the area was not busy and crowded at the time of the offence. Thus, to give the Defendant the benefit of the doubt, I am not going to treat this as an attempted pickpocketing which took place in a busy and crowded area.

11.However, I cannot ignore the fact that the Defendant is a repeat offender and has a bad criminal record. He has been before the court on 22 occasions with 23 convictions. 17 of those were “theft” offences, 5 of which were “pickpocketing”; 1 “attempted theft” offence; and 5 drug related offences. The Defendant was last sentenced in October 2010 to a term of 16 months for the offence of pickpocketing. He was released in September 2011. Yet, in just about 2 months’ time, he was caught committing this attempted pickpocketing.

12.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.

13.With the upward adjustment mentioned above, the starting point which I am going to adopt for the charge is one of 27 months.

The Sentence Imposed

14.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.

15.It was said in mitigation that, as the Defendant’s mother had just passed away in October 2011, he wanted to get some money and to remit the same to his family in Vietnam. The Defendant therefore committed the present offence. Mr. Kan suggested the court to take into account such a “special circumstance” which explained why the Defendant committed the offence shortly after his release. Mr. Kan asked that the Defendant not be treated as a professional who employs pickpocekting as a means of living.

16.My observation is that whatever the Defendant’s financial hardship and family plight, what he should have done was to seek help through proper channels. Poverty or financial stress is not an excuse for one to resort to unlawful means to earn quick money. I therefore do not accept that there was any “special circumstance” in the Defendant’s case which could entitle him to be excused from his commission of the offence shortly after his release.

17.Although Mr. Kan mentioned that no weapon was used in this case, it should be noted that factors like the use of a weapon, acting in concert with others, etc, if present, will be aggravating factors which would attract further increases in the sentence. The absence of such is not itself a mitigating factor.

18.27 months reduced by one-third is 18 months’ imprisonment. The Defendant is therefore to serve a term of 18 months for this charge.