HKSAR v. VU VAN-TOAN

DCCC 105/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 105 OF 2013

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Theft". This is a pickpocketing case which took place in downtown Yau Ma Tei.

Summary of Facts

2.  About 7:30 pm on 13 December 2012, PC 33053 (PW2) and WPC 56646 (PW3) were on plainclothes duty.  They were patrolling at the junction of Nathan Road and Dundas Street, which was crowded at the time. 

3.  PW3 saw the defendant staring at the handbags and belongings of passers-by.  PW3 informed PW2 through radio.  Both officers followed the defendant and kept observing him.

4.  Upon reaching No.608 Nathan Road, PW3 saw the defendant walking closely behind a female (PW1 Madam Tomas), who was talking on the phone using an earphone.  PW3 saw the defendant pulling out a mobile phone (Exhibit 1) from the right pocket of PW1's jacket.  He then held Exhibit 1 in his right hand and unplugged the earphone cable with his left hand.  PW3 immediately shouted at the defendant whilst PW2 intercepted him.  The defendant dropped Exhibit 1 on the ground.

5.  PW2 arrested the defendant for "Theft".  Under caution, the defendant admitted that he stole the phone to re-sell it since he had no money.

Mitigation & Sentence

6. The defendant is now 43. He was born in Vietnam and came to Hong Kong in 1988. He is a Hong Kong resident.

7. The defendant's criminal record is appalling. His first criminal record is dated 1990, just 2 years after he came to the territory. From that point onwards, his criminal convictions continued to accumulate non-stop. He has a total of 28 convictions, out of which 20 are theft-related; and of the 20 theft-related convictions, at least 7 are specified as "pickpocketing". His last conviction, which is "Attempted Theft", is dated September 2011 and he was sentenced to 20 months' imprisonment. A copy of the Reasons for Sentence for that conviction (DCCC 873/2011) was submitted to me. It was also a case of "pickpocketing". A quick glance at the defendant's criminal record gives me an impression that the defendant has in fact spent a substantial portion of his nearly 25 years in Hong Kong in prison.

8. In mitigation, defence lawyer Mr. LAI informed me that the defendant has no family in Hong Kong. Prior to his last conviction, the defendant worked as a casual construction worker. Mr. LAI submitted that on the day of the present offence, the defendant was looking for a cleaning job in Mongkok but without success. Having spent the whole day searching for a job, the defendant had no money and was in hunger. As a result, he foolishly committed the offence. I have also been told that the defendant is able to speak Cantonese and the victim is a foreign domestic helper working in Hong Kong.

9. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. Having no shelter or food is certainly not an excuse. In modern Hong Kong, there is sufficient social welfare protection for the poor to meet their basic needs. The defendant has been living in Hong Kong for 25 years and is able to speak Cantonese; he must know how to seek help.

10. The defendant was released from prison on 18 August 2012. In just 4 months after release, he committed the present offence. I am aware that on the last occasion, the learned judge has already increased the starting point to 30 months' imprisonment. In the present case, the same aggravating features also present (offence committed in a crowded location and the defendant being a persistent offender).

11. In my view, the court can only do so much in deterring a persistent offender by way of a heavy penalty. Whilst the sentence must carry a deterrent effect, the increase in the sentence cannot go out of proportion. I accept that there are limits in our penal system. If the defendant refuses to reform and to live a law-abiding life, that is his choice, and he will have to face the consequences.

12. I have borne in mind the relevant sentencing authorities[1], including those cited by Mr. LAI. In this case, I adopt a starting point of 33 months' imprisonment. A one-third discount is given for the guilty plea, reducing the sentence to 22 months. Apart from this, I see no other mitigating factors which warrant any further discount. The sentence I impose is therefore 22 months.