HKSAR v. MAC QUANG-BINH

DCCC 828/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 828 OF 2013

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a section 9 theft offence of the Theft Ordinance, Cap. 210.

2.  From the facts, this is what is commonly known as a pickpocketing offence.  At about 7.35 pm on 23 July 2013, a police officer on plainclothes duty spotted the defendant acting suspiciously in the vicinity of Sai Yeung Choi Street South near Nelson Street, a very crowded part of Mong Kok.  This officer saw the defendant looking at pedestrians’ bags and wandering around.  This officer informed his team members and at the same time put the defendant under observation.  He then followed the defendant who was following a victim crossing Shantung Street.  When the defendant was very close to this victim, the police officer observed him opening the zip of the bag that this female victim was carrying.  The officer saw the defendant insert his hand into her bag and take out a mobile phone.  The officer immediately grabbed the defendant’s hand and revealed his identity.  The defendant struggled and tried to flee.  However, this officer and others of his team that came to assist him subdued and then cuffed the defendant.  In short, the defendant was caught red‑handed pickpocketing this victim who was a visitor from mainland China.

3.  Defendant’s best mitigation today is his plea of guilty.  He is not a man with a clear record, he has an appalling criminal record.  Over 26 court appearances, he has been convicted of 33 offences.  At least seven of those convictions were for pickpocketing-related offences and another 17 were section 9 theft offences.  The defendant’s first appearance in court was in 1989 and his last conviction was in December 2012 where he was sentenced to 8 months for a pickpocketing offence.  He was released from prison for that offence in April 2013, some three months before this offence.  The defendant can be described as a persistent and repeat offender, a recidivist. This is a factor that will be relevant to sentence.

4.  I have heard in mitigation that the defendant is 49 years old, single and unemployed.  He was a Vietnamese refugee when he arrived in Hong Kong and is now a Hong Kong resident.

5.  There are sentencing guidelines for pickpocketing offences set down by the Court of Appeal.  I have considered the authority of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 and as recently as May 2010 the same guidelines were reiterated as applicable in HKSAR v Chan Mei Yee, Carman CACC447/2009.  The Court of Appeal is of the view that after trial, a 12 to 15 month term of imprisonment is appropriate for a first-time offender.  The Court of Appeal is also of the view that if there are aggravating factors that exist, that starting point can be increased.  A relevant aggravating factor that exists here is that the offence was committed in a crowded shopping area where the pedestrian traffic is heavy.  As I have mentioned before, the second aggravating factor would be where the accused is a repeat offender.  I also referred myself to the authority of HKSAR v Chan Pui Chi [1998] 2 HKLRD 830 at 833 and 834.

6.  After considering the facts, plea, mitigation put forward on the defendant’s behalf and his background, I take a starting point of 15 months.  I will, however, increase that by 9 months to take into account the two aggravating factors I find exist.  That will mean a starting point of 24 months.

7.  Defendant, you have pleaded guilty and you are entitled to a discount of one-third, that is a discount of 8 months. Accordingly, you are sentenced to 1 year and 4 months’ imprisonment.