HKSAR v. NGUYEN VAN LOI (ALSO KNOWN AS YUEN MAN LEE AND YUEN MAN LOI)

DCCC 153/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 153 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge of theft. The theft occurred on 13 January 2016 in Granville Road in Tsim Sha Tsui. It was at that location where two police officers saw the defendant acting furtively. He was staring at properties near the waist of passers-by and appeared nervous.

2.  The defendant was seen to follow the victim and steal a mobile phone.  This is later confirmed to be an iPhone 60 MILLION SHARES valued at $8,800 and was taken from the right pocket of the victim’s jacket.  The defendant ran away.  On interception, he threw the mobile phone onto the ground.  Under caution, he said he stole the mobile phone out of momentary greed.

3.  All those facts are admitted.  The defendant’s background and antecedents are also admitted.  He is aged 55.  He was born in Vietnam.  I understand he came to Hong Kong in 1981.  He has been a decoration worker in the past.  He has a family, a wife and three sons aged 21, 19 and 17 currently living in England. 

4.  Now, the defendant has been in prison on many occasions and most recently discharged on 5 September 2015.  His conviction records show the following: initial conviction in 1981, and the last conviction was in 2015.  There are totally 22 convictions for theft or attempted theft, seven of which are described as being theft pickpocketing, and the first of those being in 1983, now the most recent being in January 2015.  The defendant has been sentenced to various forms of imprisonment, both suspended and not suspended, for the offences of theft.

5.  As far as the sentencing principles are concerned, the guidelines for offences of sentencing by way of pickpocketing can be found in the case of HKSAR v Ngo Van Huy which is at CACC 107/2004 where it is said that the appropriate starting point on a plea of guilty for a person of previous good record for this offence of theft by way of pickpocketing is a sentence between 12 to 15 months’ imprisonment. Additional aggravating factors can increase that starting point for sentence and can lead to an increase.

6.  The factors that may be relevant to the present offence are, firstly, whether the offence was committed in a place where the public are at particular risk, often sometimes described as a crowded place and, secondly, whether the defendant is a repeated or persistent offender, and these are grounds for increasing that beyond the 12-to-15-month starting point.  

7.  I must firstly determine the appropriate starting point for this offence, and that is within the 12-to-15-month range. The defendant in this case has stolen an iPhone 6S which would appear to be at the time the most recent iteration of that phone.  It is possibly the most expensive phone, mobile phone in any event that can be bought on the market in normal sale and is a valuable item and clearly was specifically targeted.  I consider that the starting point for sentence should be one of 15 months’ imprisonment in this case.

8.  I must now deal with the aggravating factors that exist, and the first one of course is the location where the item was stolen.  There was no particular description of the location other than the being in the area of Granville Road.  Yet one can take knowledge that that is an area that the public resort to frequently for shopping.  It is an area that is full of tourists and is an area that no doubt attracts people who wish to steal.  I think it can be properly described as a place to which the public has access to and the public can be at particular risk from this form of offending.  I consider it is appropriate for the sentence to be further enhanced by a 3 months’ imprisonment or the starting point for sentence be further enhanced by 3 months’ imprisonment for this particular factor.

9.  The next factor appropriate in this case is whether the accused is a repeated or persistent offender, and the answer to that question posed is yes, the defendant is a repeated offender.  The defendant has committed many offences of theft or attempted theft in his career as a thief, and the most recent offences in 2015 show that the previous basis for sentencing has failed to deter the defendant in the past.  I consider that the sentence should be further enhanced to reflect the failure of previous sentencing to change the defendant’s behaviour.  I will add a further 9 months’ imprisonment for that factor.

10.  Once those aggravating factors are added up, this leads to a starting point for sentence now of 27 months’ imprisonment. Defendant is entitled by way of his plea of guilty to a one-third discount from that, leading to a final sentence of 18 months’ imprisonment.  That is the sentence I impose, one of 18 months’ imprisonment.