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DCCC 600/2020
[2021] HKDC 148
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 600 OF 2020
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HKSAR |
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DINH DINH LOI |
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(ALSO KNOWN AS TING TING LUI) |
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| Present: |
Mr Stephen Wong, counsel on fiat, for HKSAR. |
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Mr Roy Lau, instructed by Pang, Wan & Choi, assigned by the Director of Legal Aid, for the Defendant. |
| Offences: |
(1)–(3) Theft (盜竊罪) |
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REASONS FOR SENTENCE
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1. The defendant pleads guilty to three charges of theft, contrary to section 9 of the Theft Ordinance[1].
2. Full particulars of the offences are set out in the summary of facts admitted by the defendant today. In summary between 9 March 2020 and 7 May 2020 the defendant stole mobile phones from three different customers who were shopping at “Mr Fresh” which is situated at Shop A, Ground Floor of No 36 Castle Peak Road in Yuen Long. CCTV captured the defendant stealing the three mobile phones.
Charge 1
3. At around 1400 hours on 9 March 2020 Ms Cheuk was shopping at Mr Fresh. Ms Cheuk’s iPhone was kept in the zipped pocket of her rucksack. A few minutes later Ms Cheuk realised her iPhone was missing.
4. CCTV footage showed the defendant stealing the iPhone from the rucksack at around 1409 hours.
Charge 2
5. At around 1415 hours on 26 April 2020 Ms Zhou was shopping at Mr Fresh. Ms Zhou’s iPhone was also kept in the zipped pocket of her rucksack. Around twenty minutes later Ms Zhou realised her iPhone was missing.
6. CCTV footage showed the defendant stealing the iPhone from the rucksack at around 1434 hours.
Charge 3
7. At around 0830 hours on 7 May 2020 Ms Sri was shopping at Mr Fresh. Ms Sri’s Hong Kong identity card and Octopus card were kept inside the cover of her mobile phone which was placed inside her shoulder bag. At around 0840 hours Ms Sri realised her mobile phone with cover was missing from her handbag and reported the case to the police.
8. The police attended Mr Fresh and viewed the CCTV footage which showed a male stealing the mobile phone from Ms Sri’s shoulder bag at around 0834 hours. When conducting a sweeping of the area in the vicinity of Mr Fresh the police spotted the defendant who matched the appearance of the male on the CCTV footage. After a short chase the police intercepted and arrested the defendant.
9. Screen captures from the CCTV footage have been submitted to court.
Mitigation
10. In passing sentence, I have carefully considered the oral and written submissions of Mr Lau, including that the defendant aged 56, single, came from Vietnam in 1986 and has since worked as a delivery assistant and casual cleaning worker[2].
Guidelines
11. All three offences are pickpocketing. I have considered the four cases submitted by Mr Lau, three of which are sentencing cases in the District Court, including a sentence I imposed for various offences but not for pickpocketing[3].
12. In HKSAR v Ngo Van Huy the Court of Appeal confirmed the guideline sentence for pickpocketing after trial is 12 to 15 months’ imprisonment for a first offender, where there are no aggravating features[4].
13. In determining where in the range of 12 to 15 months a sentencing court should commence will depend on the facts of the case including the circumstances of the theft; the value of the property stolen; the age or vulnerability of the victim and the expertise used in the theft. The sentencing court will however need to avoid double counting by taking into account a matter later considered as an aggravating feature[5].
14. In HKSAR v Liu Lin Feng the Court of Appeal held that a starting point of 15 months’ imprisonment was appropriate for theft of a mobile phone[6], the same starting point as in Ngo Van Huy, which also involved theft of a mobile phone.
15. I am satisfied a starting point of 15 months’ imprisonment is appropriate for each offence.
Aggravating features
16. In Ngo Van Huy the Court of Appeal stated that the starting point can be increased if there exist aggravating features including where the offence is committed in a place where the public is at particular risk such as crowded shopping areas where the pedestrian traffic is heavy and where the accused is a repeat offender or, worse still, a persistent offender.
17. The screen captures from the CCTV footage clearly show the defendant took advantage of the victims while they were shopping in Mr Fresh at a time when the shop was busy. I am satisfied the starting point on each charge is to be enhanced by 3 months to 18 months’ imprisonment.
Persistent offender
18. The defendant has appeared in court on 53 occasions amassing a total of 79 convictions with 19 for offences of dishonesty, 4 specifically stated to be pickpocketing. The defendant last appeared in court on 5 December 2017 when he was sentenced to 18 months’ imprisonment for theft in DCCC 669/2017.
19. The reasons for sentence reveal this was a pickpocketing case[7]. Similarly, the reasons for sentence in DCCC 323/2012 also reveal the defendant was sentenced to 14 months’ imprisonment for pickpocketing[8]. Both offences were committed by the defendant in crowded markets.
20. By reason of the defendant’s persistent offending I am satisfied the starting point on each charge is to be enhanced by 9 months to 27 months’ imprisonment. I note the enhancements are the same as in Ngo Van Huy and when the defendant last appeared in the District Court in DCCC 669/2017[9].
21. Giving the defendant full credit for his plea of guilty reduces the sentence on each charge to 1 year and 6 months’ imprisonment.
Totality
22. The three offences are separate and distinct, committed on different days involving three different victims. Consecutive sentences are appropriate subject to totality. Taking into account all the circumstances of the three offences, I am satisfied a total sentence of 2 years and 9 months’ imprisonment properly reflects the defendant’s criminality on the three charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[10].
Sentence
23. The defendant is convicted and sentenced as follows:
Charge 1 – 1 year and 6 months’ imprisonment.
Charge 2 – 1 year and 6 months’ imprisonment with 9 months consecutive and 9 months concurrent to charge 1; and
Charge 3 – 1 year and 6 months’ imprisonment with 6 months consecutive and 12 months concurrent to charges 1 & 2.
The total sentence to be served by the defendant is 2 years and 9 months’ imprisonment.
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(D. J. DUFTON) |
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DISTRICT JUDGE |
[1] Cap 210.
[2] See §§7 & 8 of the written plea in mitigation.
[3] The three District Court cases referred to the court by Mr Lau are HKSAR v Ho Ka Tang, Roy DCCC 1102/2016; HKSAR v Zainudin DCCC 345/2018 and HKSAR v Ng Tak Yin DCCC 1148/2016.
[4] [2005] 2 HKLRD 1.
[5] See HKSAR v Chiu Suet Yee, Angel CACC 105/2010 at §§10-12. Also cited by Mr Lau.
[6] CACC 206/2011 at §§34-36.
[7] The reasons for sentence are in Chinese. Mr Lau had not read the reasons for sentence and therefore the court supplied a copy to Mr Lau. Mr Lau confirmed the case was a pickpocketing case in a crowded market place.
[8] Item 45 on the criminal record. A copy of the reasons for sentence was also supplied to Mr Lau.
[9] Mr Lau also confirmed that in DCCC 669/2017 the sentencing judge enhanced the starting point of 15 months by 3 months because the theft took place in a crowded place and 9 months for the defendant’s persistent offending.
[10] See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690.
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