HKSAR v. Nguyen Van Minh

DCCC 709/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 709 OF 2013

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Theft". This is a pickpocketing case which took place in Mongkok.

Summary of Facts

2.About 6:30 pm on 13 June 2013, PC 6120 (PW1) was patrolling at the junction of Shan Tung Street and Fa Yuen Street.  PW1 saw the defendant looking at the personal belongings of passers-by.  He walked along Fa Yuen Street towards Soy Street.  PW1 followed him.

3.At No.19 Fa Yuen Street, PW1 saw the defendant quickly approaching a female (PW2 Miss LUNG, aged 17) from behind.  The defendant reached into the right pocket of PW2's cardigan using his right hand and took out an iPhone (Exhibit 1).  He then turned around and walked away.  PW1 intercepted him and recovered Exhibit 1 from his right hand.

4.PW2 confirmed that Exhibit 1 belongs to her.  Under caution, the defendant admitted that he did not have any money, so he stole Exhibit 1 intending to sell it.

Mitigation & Sentence

5.The defendant is now 43 and single. He was born in Vietnam and came to Hong Kong in 1987. He is a Hong Kong resident.

6.The defendant's criminal record is appalling. His first criminal record is dated 1989, just 2 years after he came to the territory. From that point onwards, his criminal convictions continued to accumulate non-stop until early 2010. He has a total of 28 conviction records, which involve 20 theft-related offences; and of those 20 theft-related offences, at least 8 are specified as "pickpocketing". He was last sentenced to prison in May 2009 and was released in June the same year. A quick glance at the defendant's criminal record gives me an impression that the defendant has in fact spent a substantial portion of his 26 years in Hong Kong in prison.

7.In mitigation, defence lawyer Mr. LAM informed me that after being released from prison in 2009, the defendant has obtained a number of licenses to work in construction sites. Unfortunately, he did not have enough work. Prior to the offence, the defendant was residing in a room in Mongkok. He had to pay $2,800 per month to cover his rent and utilities. Mr. LAM submitted that at the time of the offence, the defendant only had $30 with him and was chased by his landlord for rent. He tried to borrow money from his contractor but was unsuccessful. Mr. LAM stressed that the defendant did not use any tools such as a razor blade or knife; he acted alone; and the victim suffered no loss.

8.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. Having no shelter or food is certainly not an excuse. In modern Hong Kong, there is sufficient social welfare protection for the poor to meet their basic needs. Having lived in Hong Kong for 26 years and being a released prisoner, the defendant must know how to seek help.

9.The nature of this case appears to be pickpocketing simpliciter; however, the defendant being a persistent offender clearly constitutes an aggravating feature. Furthermore, although not mentioned in the Summary of Facts, I take judicial notice that any part of Mongkok cannot be regarded as a location of low pedestrian flow at 6:30 in the evening on a weekday.

10.I have borne in mind the relevant sentencing authorities[1]. In this case, I adopt a starting point of 27 months' imprisonment. A one-third discount is given for the guilty plea, reducing the sentence to 18 months. Apart from this, I see no other mitigating factors which warrant any further discount. The sentence I impose is therefore 18 months' imprisonment.

11.In my view, the court can only do so much in deterring a persistent offender by way of a heavy penalty. Whilst the sentence must carry a deterrent effect, the increase in the sentence cannot go out of proportion. I accept that there are limits in our penal system. If the defendant refuses to reform and to live a law-abiding life, that is his choice, and he will have to face the consequences.