HKSAR v. NGUYEN VAN-TAM

DCCC262/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 262 OF 2011

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Reasons for Sentence

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1.  The defendant had pleaded guilty to one charge of theft and was convicted accordingly.

Facts

2.  The Summary of Facts disclosed that in the morning of 23 February 2011, a party of police officers was conducting anti-crime patrol on Pei Ho Street in Shamshuipo.  The defendant was seen stealing a wallet from an old lady aged 81.  Upon interception, the police found the following stolen properties on the defendant.

1. A wallet and cash of about $100

2. One Octopus card and 2 personal cards of the victim.

3.  Under caution, the defendant admitted the offence.

Mitigation

4.  Although it was stated in the Antecedent Statement that the defendant was single, it was now submitted that in facts the defendant is married and has one son in Vietnam.

5.  The defendant is aged 57 and came to Hong Kong as a refugee in or about 1981.  He relied on the CSSA of $2,800 for living.  Defendant pleaded guilty at the first opportunity and was cooperated with the police.  

6.  The defendant did not use any weapon or tools to commit the crime, and the victim did not suffer any loss.  And the defendant acted alone.

7.  Defence lawyer submitted two cases, HKSAR v. Ngo Van Huy, [2005] 2HKLRD 1 and HKSAR v. Dang Van Tuan, CACC 187/2009 for reference.

Sentence

8.  The defendant has 34 convictions and out of which 21 were similar.  The defendant was last convicted of one count of attempted theft in May 2010 and was sentenced to 12 months.  He was released on 24 January 2011. 

9.  And in less than one month, the defendant committed the present crime. This is an aggravating factor.  There is no clear evidence from the Summary of Facts to suggest that the scene of the crime was busy or crowded at the material time. 

10.  I accepted that the defendant did not use any weapon to perpetrate the crime, nor was the defendant acted in concert with others. 

11.  The stolen property was not of high value and eventually the victim did not suffer any loss.  The only mitigation that the defendant can put forward is his guilty plea.  Given the defendant’s previous records, I would say that the defendant knows that this would be his wise decision in order to get one-third discount in sentence.

12.  The defendant was caught red-handed, and the defendant had got sentences arranging from 3 months to 18 months for his previous convictions of the offences of attempted theft and theft.  It seems that the defendant has not learnt any lesson from his sentences. 

13.  As said by Mr Justice Ma, (CJ HC as he then was) in Ngo Van Huy, “theft by pickpocketing can be regarded as the type of the offence that society severely and rightly condemns.  The significant degree of inconvenience and the adverse reputation that this type of crime collectively brings upon a city makes this offence a particularly serious one. It is one which attracts, justifiably in our view, a heavy penalty.” 

14.  The guideline sentence of 12 to 15 months after trial is appropriate for a first time offender.  The starting point could be increased where there existed aggravating features, for example, inter alia, the offence is committed in a  place in which the public is at particular risk, the accused is a repeat offender, or worse still a persistent one.     

15.  Given the defendant’s appalling previous records and the present crime was committed nearly just one month after the defendant last discharged from prison, I would adopt a starting

point of 27 months. With his plea, I reduce the sentence to 18 months.