HKSAR v. NGUYEN XUAN-CUONG

DCCC 338/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 338 OF 2013

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant has pleaded guilty today to one charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.  Particulars of the offence are that on 9 February 2013 outside 74 Pei Ho Street, Sham Shui Po, the defendant stole one smartphone, property of a Miss Kou.

3.  The facts of this case are very straightforward.  The defendant was caught red-handed picking the pocket of the victim.  The defendant was seen by a vigilant member of the public standing close to the victim and looking around.  This witness saw the defendant put his hand into the victim’s pocket and take out her mobile phone.  The defendant then walked away.  This witness immediately stopped the defendant and recovered the phone.  The police were then informed. 

4.  The defendant very wisely fully co-operated with the police and admitted the offence.  He told the police he wanted to earn some money for the Chinese New Year. 

5.  The phone was worth HK$4,000.

6.  The defendant’s best mitigation is his plea of guilty today.

7.  The defendant has an appalling criminal record. He has 54 previous convictions of which 28 relate to offences of dishonesty; several of those are pickpocketing offences.  The defendant’s last criminal record was a District Court case for pickpocketing and he was sentenced to 18 months’ imprisonment after a plea.  He was released from prison in December 2012.  He was arrested again for this offence 2 months later. 

8.  The defendant is clearly a recidivist and a repeat offender, and the court can take this into account when considering an appropriate starting point for an offence, increasing that starting point. 

9.  I refer myself to the authority of HKSAR v Chan Pui Chi [1999] 2 HKLRD 830.  Clearly, sentences the defendant has received in the past have proved to be no deterrent to him.  

10.  Defendant is 45 years old and single.  He was born in Vietnam but came to Hong Kong as an illegal immigrant in 1981.  He is now a Hong Kong citizen.  Because of his background he has only received education up to Primary 5.  He had a long history of drug abuse but says that he kicked this habit since 2007.  The defendant is not employed in any full-time employment and survives on CSSA public assistance of $3,100 per month.  From that amount he has to pay rent of $1,300 per month. 

11.  In mitigation, Miss Liang, solicitor for the defendant, has submitted an authority for the court’s consideration, HKSAR v Tsui Chiu Kwai CACC452/2011.  The facts of that case are similar to this case. That defendant was a lone operator but a professional pickpocket.  He targeted a victim in a busy market street.  He had an appalling criminal record and was a persistent repeat offender.  The sentencing judge took an initial starting point of 15 months and increased it by 12 months for that defendant’s appalling criminal record.  A further 3 months was added for the fact he targeted a victim in a busy crowded area.  That starting point of 30 months was upheld by the Court of Appeal.  That Court of Appeal authority referred to several other cases including HKSAR v Pham Thai Van Bao CACC206/2010.

12.  The initial starting point for an offence of this nature can be derived from following the authority of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  The Court of Appeal was of the view that the usual starting point for a single offender is between 12 and 15 months. 

13.  Having considered the facts here, I consider a 15-month starting point as appropriate.  Like the authority of Tsui Chiu Kwai, I would increase that starting point by 12 months to reflect the defendant’s appalling criminal record and the fact he re-offended 2 months after his release from prison for a similar offence.  I would also consider it an aggravating factor, he targeted the victim in a busy crowded street, and increase that 27-month starting point by another 3 months.  That is a total of a starting point of 30 months.

14.  As a result of the defendant’s plea this morning, he is entitled to a discount of one-third, that is 10 months. Accordingly, he is for this offence sentenced to a term of imprisonment of 20 months.