HKSAR v. LE VAN-HOA

DCCC 17/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 17 OF 2013

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REASONS FOR SENTENCE

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1.  The defendant, Le Van-hoa, pleaded guilty before me to a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap. 210.

2.  The particulars of offence avers that the defendant:

“...on the 1st day of December 2012, at Ka Ka, Ground Floor, Nos 216‑218C Fa Yuen Street, Mongkok, Kowloon, in Hong Kong, stole one mobile phone, the property belonging to Kwok Yee-ying.”

3.  The offence is more commonly known as “pickpocketing”.

The Facts

4.  According to the facts which have been admitted by the defendant, the present case is a very straightforward pickpocketing offence.  The defendant was acting suspiciously in a busy street in Mongkok when he was spotted by two police officers who decided therefore to follow him and monitored his acts. 

5.  Defendant later was seen entering a fashion boutique called Ka Ka as named in the charge where he was in particular wandering around and looked at the handbags of the customers in particular.  Later, the defendant stood to the left of the female victim, one Madam Kwok, and extended his head to check on the victim’s handbag.  Defendant then extended his right hand into the victim’s handbag and took her mobile phone out of the handbag.  Defendant then put the mobile phone into his trousers pocket and left the shop.  He was subsequently intercepted by the police officers outside the shop, and upon body search, the mobile phone was recovered.  Defendant was then immediately arrested and cautioned and under which he admitted the offence.

Criminal Records and the Background of the Defendant

6.  Defendant is aged 46.  He was born in Vietnam.  He has been in Hong Kong for over 30 years and became a Hong Kong citizen after coming from Vietnam.  He is still single and he has no relative in Hong Kong.  He had only a Primary 5 level of education and he was unemployed.  He lived on public assistance in the sum of $3,000 each month.

7.  He had in the past 37 previous convictions, of which 19 were related to thefts, and more important in particular, he had 5 previous records of pickpocketings.  His last pickpocket record was in 2010 when he pleaded guilty in the Kowloon City Magistracy and received a sentence of 18 months’ imprisonment.  

Mitigation

8.  In mitigation, Mr Chan, solicitor for the defendant, prayed in aid the fact that the defendant had pleaded guilty and he was remorseful.  He recognised that the shop in question is situated in a crowded and busy street in Mongkok which is an aggravating feature of the offence.

9.  Mr Chan also properly acknowledged the fact that the defendant had a lot of previous similar records relating to thefts and pickpockets in particular.  Mr Chan, however, reminded the court that this is a pickpocket offence where the defendant had committed alone with no accomplice and also it is not an organised or planned offence and there is no tool used in the commission of offence.  Taking all the circumstances into consideration, Mr Chan urged the court to pass a lenient sentence.

Sentencing Considerations

10.  Pickpocket is a serious offence and is also a very irritating offence. In HKSAR v Dang Van Tuan [2010] HKLRD 330, the Court of Appeal had commented that apart from the financial loss, the victims of pickpocketing often suffer serious inconvenience and frustration resulting from the loss of identity documents and other personal items.  The Court of Appeal went on to observe that the offence, prevalent and easily committed by unscrupulous and often persistent offenders, must be deterred.  

11.  In recent months, the thefts and pickpockets of mobile phone or smartphones in particular have become very prevalent chiefly because of considerable resale value and although in this case, it does not involve the loss of identity documents or personal items, in my view, the theft of mobile phone or smartphone in particular, has become so prevalent that it must be deterred.

12.  The defendant in this case had an appalling previous record.  It is clearly an aggravating feature which I cannot ignore and also it demonstrated the need to impose a deterrent sentence on the defendant as the previous sentence simply apparently has had no effect on him and there is a clear need to protect the public from the criminals like him.

13.  According to the case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the usual starting point for a single defendant is between 12 to 15 months.  In this case, I would adopt 15 months, the higher end, as the starting point and I would also add a further 12 months to take into account and reflect the appalling and poor previous record of the defendant.  Lastly, I shall also add a further of 3 months to reflect the fact that this case took place in a busy and crowded street in Mongkok. 

14.  The resulting starting point before the discount was given is therefore 30 months’ imprisonment.  The defendant pleaded guilty and therefore he would receive a one-third discount.  The sentence is therefore reduced to 20 months’ imprisonment. 

15.  The defendant should know that if this case involved more than one person, the sentence is likely to be higher and also the sentence is also likely to be enhanced under the Organised and Serious Crimes Ordinance.