HKSAR v. Nguyen Tuan-anh

DCCC51/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 51 OF 2012

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Before: Deputy District Judge C P Pang

Date: 22 February 2012 at 11.03 am

Offence:  Theft (盜竊罪)

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Reasons for Sentence

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1.The defendant has pleaded guilty to one count of theft.

2.The facts admitted can be summarized as follows.

3.At around 1805 hours on 2 December 2011, two plain-clothed police officers were on patrol at Pei Ho Street Market, Sham Shui Po, they saw the defendant loitering and staring at the bags carried by passers-by.  Feeling suspicious, they kept him under observation.

4.At around 1814 hours the defendant was seen following Madam Yan Jup-mun (PW1) who was carrying a handbag up to a vegetable stall at Shop V9 on the 1st floor of the market.   When PW1 was picking grocery, the defendant stole a mobile phone from the right pocket of the jacket that PW1 was wearing.  The officers soon intercepted the defendant outside Shop V12 of the market.  They retrieved the mobile phone from the defendant’s jeans. 

5.Upon arrest and under caution, the defendant said in Punti, “Sir, I stole a mobile phone from a woman out of momentary greed.  Please give me a chance.” 

6.The value of the stolen property was about $2,500.

7.The defendant is aged 41, living with his girlfriend.  He came to Hong Kong from Vietnam as a refugee and has become a Hong Kong resident.  He was an odd-job cleaner before he was arrested. 

8.He has 25 previous convictions, three of them, pickpocketing offences, and three others, theft-related offences. 

9.In mitigation, his lawyer told the court that the defendant committed the offence out of greed because of his poor financial condition.  He had not paid his rent for two months.

10.Though the defendant has a long history of criminal convictions, his lawyer says the defendant is not a professional pickpocket; his last conviction for pickpocketing was back in 2003. 

11.The Court of Appeal had laid down guideline and principle for pickpocketing in HKSAR v Ngo Van Huy.  The guideline sentence for a first time offender committing the offence alone is 12 to 15 months.  The guideline starting point can be increased when there are aggravating features. 

12.In this case the defendant had loitered and stared at bags of passers-by for 9 minutes before he committed the offence. Obviously it was not a case of momentary greed but an act of premeditation.  So the general starting point should be 15 months in this case.

13.There is an aggravating factor in this case. The place where the offence was committed was a market in a building and obviously a very crowded area where customers jostled with one another.  This is an aggravating feature and I add 3 months to the sentence.

14.Another thing I should consider is whether to raise the starting point because of his previous convictions.  No doubt he has a long history of criminal record with many convictions for theft-related offences including two pickpocketing offences.  However, it is rightly pointed out that the last conviction for this kind of offence was back in 2003 and since then he has only committed offences for possession of dangerous drugs. On the record he has ceased his thievish acts for 8 years.  To give him credit for this, I am not going to increase the starting point for his previous convictions. 

15.At the end, I will therefore take 18 months as the starting point in this case.  No doubt the defendant’s financial difficulty cannot be regarded as a factor to reduce the sentence.  The defendant will get the usual one-third discount for his plea of guilty.  Apart from this factor, there are no other factors to justify a reduction of sentence.   The defendant is therefore sentenced to 12 months’ imprisonment.