HKSAR v. DINH KHAC THANG

DCCC606/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 606 OF 2010

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Reasons for Sentence

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Offence

1.  The defendant pleaded guilty to a count of theft, under section 9 of the Theft Ordinance, Cap.210.  The offence was in the nature of pickpocketing. 

Facts

The facts of the case can be summarised as follows:

2.  On 16 April 2010 at 9.35 in the evening, PW1, PC58523 in plainclothes, spotted the defendant acting furtively on the 2nd floor of Argyle Centre, a busy shopping arcade at Mong Kok.  During the observation, the defendant was seen placing his right hand near to a female victim’s right jacket pocket, and then pulled the mobile phone out of the pocket.

3.  He then left the shopping arcade with the mobile phone.  PW1 immediately intercepted him and revealed his police identity.  In response, the defendant asked PW1 for a chance, whilst holding the mobile phone in his hand.

4.  PW1 arrested the defendant for theft.  Under caution, the defendant said in Punti, “Sir, I got arrested by you now. I admitted that this mobile phone was stolen from a girl in Argyle Centre.”  At this juncture, the mobile phone rang.  Someone claiming to be the owner of the mobile phone said that her mobile phone was lost.

5.  Very shortly the female victim appeared at the arrest scene and positively identified the mobile phone to be hers, which was bought half a year ago at $3,800.

Background of the defendant and mitigation

6.  The defendant is now 35 years old.  He was a construction site worker on a casual basis, and a father of two daughters aged 3 and 8.  He is now a recipient of the CSSA of a monthly sum of $3,000.

7.  Despite the fact that he and his family are having a tight budget, he spent almost all of his income given to him by the Hong Kong Government on drugs.  There was no sign of him to kick off his drugs habit.  He was and has always been on irresponsible father and son. 

8.  Ever since he was 17 he began to commit offences in Hong Kong, and has been to the DATC and prison on numerous occasions.  At the age of 33 and up to the present offence, he has 21 previous convictions, 17 of them were dishonesty related; 3 of which was burglary; 9 of which were theft; 4 of which were pickpocketing.  After he was last released from the DATC in September 2009 for a theft offence, within 7 months’ he committed pickpocketing, the subject matter of this case, again.

9.  Imprisonment sentence has apparently no deterrent effect on him at all.  Having such an appalling previous convictions, he is obviously considered to be a persistent and repeat offender.

10.  Besides his guilty plea, there was nothing much his counsel could usefully say on his behalf in mitigation.

Relevant authority and guidelines

11.  In HKSAR v Ngo Van-huy, CAAC 107/2004, the appellant pleaded guilty to a theft charge.  The case involved the pickpocketing from a pedestrian of a mobile phone valued at $3,680, which took place at 7.20 pm at Argyle Street, a particularly busy area in Hong Kong.

12.  The incident in our case was almost the same as in Ngo’s case.  The present offence took place along the same street but at a shopping mall at 9.35 pm, and a mobile phone worth $3,800 was stolen and recovered shortly after the incident.

13.  The Court of Appeal in Ngo’s case held that the guideline sentence of 12 to 15 months’ imprisonment after trial was appropriate for a first-time offender.  Account must also be taken of the existence of any aggravating or mitigating features, including the offence was committed in a place in which the public was at particular risk, such as crowded shopping areas where the pedestrian traffic was heavy, and the defendant was a repeat offender or a persistent one.

14.  The Court of Appeal in Ngo’s case reckoned a need to impose a deterrent sentence or the need to protect society from criminals like the appellant, who had 27 previous convictions, 17 have been for theft and attempted theft.  It was emphasised that “where a poor previous record for similar offence existed, the court will be justified in imposing a substantially higher sentence.”

15.  Notwithstanding that, the case was the theft of a mobile phone worth $3,680, a 9 months was added to a starting point of 15 months on the appellant.  A further 3 months was added for the offence to have been committed in very crowded part of Hong Kong, particularly at that time of the evening.  The sentence for the appellant came to 27 months.  After one-third discount for his guilty plea, it was reduced to 18 months.

16.  Application for enhancement was made and proved in that case.  Eventually a one-third enhancement was imposed under the Organized and Serious Crimes Ordinance, which brought the original sentence for the appellant to 24 months.

Sentence

17.  This court will not consider the issue of enhancement as no such application was made by the prosecution.  However, there was no reason for this court to depart from the sentence which were imposed by the Court of Appeal in Ngo’s case, as the background of the case and the appellant were similar to that of our case.  As such, this court will adopt a starting point of 15 months.

18.  Nine months is added for the fact that a deterrent sentence ought to be imposed on and the need to protect society from the persistent criminals like the defendant in our case.

19.  Another 3 months is also added for the aggravating factors of offence committed in a very crowded part of Hong Kong in the evening.  That will bring the sentence to 27 months.

20.  This court will allow the usual one-third discount for the guilty plea. 

21.  As such, a sentence of 18 months’ imprisonment is now imposed on the defendant.