HKSAR v. TRANG VAN CHUONG AND ANOTHER

DCCC 92/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 92 OF 2009

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Reasons for Sentence

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Charges

1.   D1 pleads guilty to a charge of pickpocketing (1^st Charge). D2 pleads guilty to another charge of pickpocketing (3^rd Charge).

Facts of 1^st Charge

2.   At 8:40 p.m. on 8 November 2008, TING Yee-ching, aged 13, entered the 7-11 Convenience Store located at G/F, No. 263 Yu Chau Street, Sham Shui Po to browse. She was listening to music on her mobile phone placed inside her right skirt pocket. After D1 walked past her, she lost her mobile phone. She made a report to the police.

3.   The police reviewed the CCTV recording in the store. They saw D1 take TING’s mobile phone from her pocket.

4.   On 11 November 2008, the police intercepted D1 in Sham Shui Po. Under caution, D1 refused to answer questions. He was released on court bail.

Facts of 3^rd Charge

5.   At about 4 p.m. on 1 December 2008, TANG Nga-ling finished school and walked along Tai Po Road near the junction of Un Chau Street towards Mongkok. She was listening to music on her mobile phone with an earphone. The mobile phone was placed inside her left jacket pocket. The string of the mobile phone was dangling outside the pocket. Later, TANG found the music stop and saw her mobile phone on the ground. At that moment D2 swiftly picked it up and hurried away. She chased after him. At that moment, someone asked D2 why he picked up the mobile phone. D2 made no reply and kept walking away.

6.   A passer-by, CHONG Ho-ming, saw D2 pick up TANG’s mobile phone. He chased after D2. D2 went into an alley with another male. He soon lost sight of that other male. Another passer-by, YUEN Man-chung, saw D2 pass a mobile phone to an unknown male and then ran away. TANG intercepted D2 outside Hong Kong Jockey Club off-course betting centre at No. 196 Tai Po Road. CHONG came up and identified D2 as the one who had picked up the mobile phone. TANG asked D2 if he had picked up her mobile phone. D2 replied in the negative.

7.   Upon arrest for theft and caution, D2 denied the offence. In the first cautioned interview, D2 said he did not know that the mobile phone was a stolen item, and that he thought someone might have left it there. In the second cautioned interview, D2 said that he had just walked past with a friend when he noticed a mobile phone on the ground, that he had picked up the mobile phone and passed it to his friend, who returned it to him later.

8.   On 3 December 2008, D2 returned TANG’s mobile phone on his own initiative to the police.

Mitigation put forward

9.   D1 is now 43 years of age. He came to Hong Kong from Vietnam in 1988. He has an aged mother and an elder brother in Vietnam. He has to send money over to support their living. As he is always jobless, he commits offences from time to time. He has 16 previous convictions for theft, the last of which was in February 2008. He was released from jail in October 2008.

10.   D2 is now 42 years of age. He has a clear record. He is married. He has a son and a daughter. He committed the present offence as he was walking nearby with a friend. He picked up the mobile phone and the friend asked him to keep it despite others’ queries. He later passed it to the friend, who went away. He got it back from the friend and then returned it to the police.

Sentencing principles

Guidelines for sentencing pickpockets

11.   In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal laid down a guideline sentence of 12 to 15 months for pickpocketing after trial for a first time offender. A heavier sentence would be imposed where there were aggravating factors (per Ma CJHC, at 7), which included:

(1) The offence took place in a place in which the public is at particular risk, such as crowded places like the MTR or the race course, crowded shopping areas where the pedestrian traffic is heavy;

(2) Repeat or persistent offending.

Persistent offender

12.   A defendant who has not been deterred by a large number of previous sentencesof imprisonment may receive a longer period of imprisonment for a particular offence than a defendant who has a clear record or who has been imprisoned only on few occasions. In HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 Stuart-Moore VP said at 833:

Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he has already served the penalty, the constant repetition of this applicant’s trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned. The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest.

We should add that there is nothing original about the notion that a defendant, with previous convictions of the same or a similar kind as the offence for which he is due to be sentenced, may receive a longer sentence than a defendant with none. If it were otherwise, the man of good character standing next to the recidivist in the dock on a joint charge, with equal culpability for the crime, would plainly have to be sentenced to the same terms of imprisonment subject probably to a small reduction in the case of the former to take account of his good character.

Sentencing theft by finding

13.   There are no guidelines or even customary sentences. Each case has to be looked at in its own facts.

Present sentence

14.   D1 is a persistent offender for theft. I take a starting point of 2 years’ imprisonment. There are no mitigating factors besides his plea of guilty, I reduce it to 16 months.

15.   D2 was a greedy person who picked up other’s mobile phone and upon being confronted elected to flee with it. He also passed it to another person who was actually guilty of handling it as a stolen property. These are the aggravating factors. His mitigating factors include his plea of guilty and his clear record. There is also his voluntary return of it to the police on a later day. I take a starting point of 10 months’ imprisonment. I reduce it to 6 months after putting such mitigating factors together.