HKSAR v. Duong Van Dung

DCCC 290/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 290 OF 2015

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REASONS FOR SENTENCE

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1.Defendant you have pleaded guilty to a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210. The offence you committed is commonly known as “pickpocketing”.

2.According to the facts which you have admitted, briefly, at around 1947 hours on 17 February this year, a team of plainclothes police officers were patrolling outside No. 269A Cheung Sha Wan Road when one of them saw you acting furtively and thus put you under close observation.  One minute later, you were seen approaching a 24 years old female pedestrian from behind, and you stretched your right hand into the outer pocket of the lady’s backpack and took her mobile iPhone.  As you turned around and fled, the police officers immediately intercepted you and the mobile phone was recovered from your hand.

3.You were arrested by the police and, under caution, you admitted stealing the iPhone because you did not have money.  The value of the stolen iPhone was estimated at about HK$2,300.

4.In passing sentence, I have carefully considered everything that is said on your behalf by Mr Lai, your solicitor assigned by the DLA, and also the sentencing authorities in relation to pickpocketing cases.  In particular, in the case HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 the Court of Appeal laid down the guideline sentence for pickpocketing after trial is 12 to 15 months’ imprisonment for a first-time offender where there are no aggravating features.

5.According to the Court of Appeal, aggravating features include, for example, where the offence is committed in a place in which the public is at particular risk such as crowded areas where the pedestrian traffic is heavy. The fact that an accused is a persistent offender is also another aggravating feature. 

6.You are now aged 43 and you came to Hong Kong in 1986.  From 1990 to 2013, you have appeared in court altogether on 21 occasions, amassing a total of 25 convictions with 13 involving dishonesty, 5 specifically stated to be pickpocketing.  The last appearance was before the District Court in 2013 when you were sentenced to 18 months’ imprisonment.  In fact, on the previous two occasions, in 2007 and 2009, for the offences of pickpocketing in which you have both pleaded guilty, you were also sentenced to 18 months’ imprisonment.

7.The subject matter of the stolen property in this case is a mobile iPhone.  I am satisfied that the initial starting point after trial should be 15 months’ imprisonment.  (See HKSAR v Liu Lin Feng CACC 206/2011)

8.Nowadays, mobile phones or smartphones were commonly used by people not only simply as a tool for communication but storage of confidential and valuable personal data.  The theft and hence the loss of a smartphone or iPhone to the owner will no doubt cause considerable frustration and inconvenience, not to mention the value of the iPhone is normally higher.

9.By reason of the aggravating features that the present offence was committed in the early evening in the Sham Shui Po area, at a time when the street was well-known to be very crowded and especially when it was just a few days before the Lunar New Year, I am satisfied that the starting point has to be increased by 3 months.

10.Also, looking at your records, you are a persistent offender.  On the last three occasions from 2007 to 2013, I have no doubt that the courts had increased the starting points on account of your previous records, all by 9 months on each occasion, relying on the case of Ngo Van Huy. This is already the fourth time you have committed the same offence since 2007.

11.It is now obvious to the court that the past increase of 9 months’ imprisonment has already lost its deterrent effect on you altogether.  If I also adopt the same increment by 9 months as on the last previous three occasions, this time you will just receive the same sentence of 18 months’ imprisonment. In order to achieve the deterrent effect on you personally and also to protect the public, I think it is only proper that I should increase the starting point this time by 12 months on account of your previous records.  The total starting point before any reduction therefore comes to 30 months’ imprisonment.

12.Giving you the full credit for your plea of guilty, this time you are therefore sentenced to 20 months’ imprisonment.