HKSAR v. PHAM BICH THUY

DCCC392/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 392 OF 2011

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Reasons for Sentence

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1.  The defendant is convicted upon her own plea of one charge of theft, contrary to section 9 of the Theft Ordinance, Cap.210, Laws of Hong Kong.

Facts

2.  On 19 March 2011, the victim was choosing merchandise inside the shop particularised in the charge.  The shop was crowded at that time because five to six persons were at the same time inside the shop, which had an area of only about 50 square feet.

3.  The victim had put her iPhone inside the right pocket of her jacket.  Suddenly, she felt the jacket pocket shaking.  She turned around and saw the defendant holding her iPhone.  The defendant returned the iPhone to the victim and left at once, but the victim yelled out.

4.  A nearby woman constable was alerted.  She stopped and subsequently arrested the defendant.  Upon caution, the defendant admitted the offence.

Criminal Record

5.  The defendant has 16 previous conviction involving 25 offences.  Among these 25 offences, 24 of them were for offences of theft or attempted theft.  From the descriptions of the offences in the criminal record and from the sentences imposed on the defendant, it is quite clear that most of these offences of theft or attempted theft were pick-pocketing offences.

Personal and family background

6.  The defendant is 43 years old, born in Vietnam and came to Hong Kong 20 years ago.  She received up to junior secondary education in Vietnam.  She had once worked as a packaging worker but was unemployed at the time of the offence.  She got married in 1992 but divorced in 1994.  Out of the marriage she has a son, now aged 21 and currently living in England, and a daughter aged 19.  She cohabited with another man in year 2000 but separated in 2006. Out of this cohabitation she has a daughter, now aged 7.  Prior to her remand she was living with her two daughters.

Mitigation

7.  Mr Yeung, solicitor for the defendant, submitted that the defendant had to take care of her children single-handedly but she had received only little education and had no particular expertise in any occupation.  In addition, the defendant could speak little Cantonese.  Because of all these factors the defendant had great difficulty in finding a job. 

8.  Mr Yeung submitted that the defendant committed this offence because she did not have the necessary financial assistance.  According to Mr Yeung, the defendant knows she is wrong and is determined to turn a new leaf.  He pointed out that the defendant did not use any weapon or tool in the crime and that the offence was not a premeditated one.  He stressed that the defendant had pleaded guilty and begged for leniency. 

9.  Mr Yeung also submitted a mitigation letter from the defendant’s daughter.

Reasons for sentence

10.  The offence committed by the defendant, which is commonly called a pick-pocketing offence, has long been regarded as a serious offence.  The Court of Appeal has already laid down clearly sentencing guidelines for an offence of this nature. 

11.  In HKSAR v. Ngo Van Huy, [2005] 2 HKLRD 1, the Court of Appeal made it clear that even for a first offender of this type of offence the appropriate sentencing option was imprisonment and the prison term had to be an immediate rather than a suspended one.

12.  As to the quantum of sentence for a first offender, the starting point should be 12 to 15 months’ imprisonment.  The Court of Appeal has also made it clear that account had to be taken of the existence of any aggravating or mitigating factors before the court.  Aggravating factors included:

(a) where the offence was committed in a place in which the public was at particular risk, such as crowded places like crowded shopping areas; and

(b) where the accused was a repeated offender or persistent offender.

13.  In Ngo Van Huy, the appellant stole a mobile phone from the jacket pocket of the victim.  He had 27 previous convictions including 17 convictions for the offence of theft or attempted theft.  The Court of Appeal considered that the proper starting point of the sentence was 15 months’ imprisonment.  In light of the defendant’s appalling criminal record and the fact that the offence was committed in a crowded place, the Court of Appeal increased the sentence by 9 months and 3 months respectively to reflect these two factors.  The Court of Appeal therefore held that the proper starting point of the prison term was 27 months’ imprisonment.   

14.  In light of the guidelines laid down by the Court of Appeal, the facts of this case and the defendant’s criminal record, there is no doubt that the only available sentencing option is imprisonment.

15.  In the present case, the defendant acted alone when she stole the phone from the victim, she did not use any tool, the proper starting point should therefore be 15 months’ imprisonment.  There were however two aggravating features which this court must take into the account to adjust the sentence upwards.

16.  Firstly, her criminal record is appalling.  Prior to this offence she had already committed offences of theft or attempted theft on 24 occasions and many of them for clearly pick-pocketing offences.  Her last sentence was imposed on 16 June 2009.  For the offence of theft, she was sentenced to 26 months’ imprisonment, 20 months of which were ordered to run consecutively to the 16 months’ prison term imposed in the earlier case. In other words, for those two offences the defendant had served a total of 36 months’ imprisonment.  She was released from prison on 3 December 2010.  However, just about 3½ months after her release, she committed the present offence. 

17.  To reflect this aggravating feature, another 9 months’ imprisonment term will be added to the sentence. 

18.  Secondly, the defendant committed the offence in a crowded shop.  To reflect this aggravating feature, another 3 months’ imprisonment should be added.

19.  The proper starting point of the prison term to be imposed on the defendant is therefore 27 months’ imprisonment.

20.  As to the mitigating factors, it might well be that the defendant had to take care of her children single-handedly and that she was subject to great financial pressure.  However, this court has no doubt that the defendant had been putting up excuses of this kind whenever she was to be sentenced.  She must have known too well that financial pressure can never be regarded as a mitigation and this court will not give her any discount of her sentence on this ground.

21.  This court notes the defendant’s family background and understands that her youngest daughter is only 7 years old. However, the defendant must have known that if she pick-pocketed again, she will be sent to prison again and will not be able to take care of her children.  Yet, the defendant ignored her responsibility towards her children.

22.  Under these circumstances, even if the defendant’s children will suffer any hardship as a result of her incarceration, the defendant’s sentence cannot be reduced on this ground.

23.  The only mitigating factor in favour of the defendant is her guilty plea.  On this ground, she is entitled to be given the usual one-third discount of the sentence.  There is no other valid mitigating factor upon which this court can reduce the defendant’s sentence further. 

24.  It would be wrong in principle to consider a suspended sentence and, in any event, there is no ground for imposing a suspended sentence.    

25.  The defendant is therefore sentenced to 18 months’ imprisonment.