HKSAR v. Ta Dinh Hai also known as Au Van Tinh

DCCC 624/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 624 OF 2013

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Reasons for Sentence

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Charges and facts

1.In the afternoon on 23 May 2013, the defendant snatched the necklace, valued at $9,020, from a lady in the street.  Her cry for help was responded with swift chasing and subduing by two civic-minded passers-by and eventually the police. He was arrested soon after he had thrown the necklace onto the ground.  This constituted the 1^st charge, theft by snatching.  He admitted to the police to have hidden in a truck on its way to Hong Kong 2 days before the snatching.  This constituted the 2^nd charge, unlawful remaining in Hong Kong.  He was in breach of a deportation order issued in June 1998.  This constituted the 3^rd charge, breach of deportation order. 

Personal background and mitigation

2.The defendant was born in Vietnam.  He is now aged 47 years.  His parents had passed away.  He had received 7 years’ education in Vietnam equivalent to F. 1 level of Hong Kong.  He is married and has to support an ailing wife and 2 sons who are still at school.  He last worked as a driver in Vietnam before the present offences.  He came to Hong Kong to look for a job.  Before he managed to contact his friends, he was driven to snatching the necklace by 2 days’ hunger. 

3.He had 1 previous conviction theft, 4 for unlawful remaining and 2 for breach of deportation order.  His said immigration records are a concern for aggravating his present sentences.           

Sentencing considerations

4.There are no sentencing guidelines for theft by snatching.  I shall put its criminality between pickpocketing and robbery.  Simple act of snatching shall be much nearer to pickpocketing.  The sentencing guidelines for pickpocketing have pitched at 12 – 15 months as the starting point for a first time offender in the absence of aggravating factors (HKSAR v Ngo Van Huy [2005] 2 HKLRD 1).  Theft by simple snatching may warrant 15 months as a starting point of which HKSAR v Chan Sin Leung CACC 48/2006 is an example.  A subsequent persistent offender was given 2 years as the starting point for each of his snatching (HKSAR v Lee Chi Man CACC 387/2006). Another example of theft by simple snatching resulted in 12 months as the starting point (HKSAR v Yeung Kam Tung CACC 427/2012).  Depending on the facts of the case in question, a starting point of about 15 months appears to be within range.             

5.It is well-settled that an illegal immigrant shall receive 15 months’ imprisonment on a guilty plea and a repeat offender shall receive a higher sentence (The Queen v. So Man-king and Others [1989] 1 HKLR 144). 

6.The customary starting point for breach of deportation order is 3 years (HKSAR v Nguyen Tuan Anh [2004] HKCU 44, HKSAR v Pham Van Tuan [2009] HKCU 776).   

7.In HKSAR v Bui Van Kai CACC 175/2012, the Court of Appeal reviewed the authorities (HKSAR v Nguyen Cong Su CACC 286/2012, HKSAR v Pham Van Hung CACC 14/2011) and regarded as apposite concurrent sentences in sentencing the dual offences of unlawful remaining and breach of deportation order. 

Sentencing this defendant

8.I take 15 months as the starting point for the 1^st charge.  It becomes 10 months upon the guilty plea.  I take 18 months as the sentence for the 2^nd charge upon the guilty plea.  I take 3 years as the starting point for the 3^rd charge.  It becomes 2 years upon the guilty plea.  The 2^nd charge shall run concurrently with the 3^rd charge in the sentence.  The 1^st charge calls for a consecutive sentence, though. 

9.By totality, I order 4 months for the 1^st charge to be concurrent with the 2^nd and the 3^rd charges.  The overall sentence shall be 2 years and 6 months.