HKSAR v. PHAN NANG MINH (also known as PUN NANG MING)

DCCC 557/2024

[2025] HKDC 149

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 557 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant was convicted on his own plea of one count of attempted theft, contrary to section 9 of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap. 200[1].

Facts

2.  The facts admitted by the defendant reveal that on 5 February 2024 at about 1520 hours, while Ms Kwok (“PW1”)  was walking along the pavement near No. 155 Queen’s Road Central, the defendant took PW1’s mobile phone (an iPhone 14 Pro Max)  from the right pocket of her jacket.  When PW1 confronted the defendant, he placed the mobile phone back into the pocket of her jacket and left.

3.  PW1 followed the defendant.  The defendant was subsequently intercepted by a police officer on patrol.  Under caution, the defendant admitted stealing the mobile phone for resale purpose as he faced financial difficulties.

Previous convictions

4.  The defendant has 37 court appearances resulting in 44 convictions of which 32 were of theft or attempted theft offences.  The defendant’s last conviction was on 6 March 2023 for one count of pickpocketing.  He was sentenced to 12 months’ imprisonment.

Personal background and mitigation

5.  The defendant is 53 years old.  He was born in Vietnam.  He came and settled in Hong Kong with his parents and 3 younger sisters when he was 7 years old.  At the time of mitigation, he is separated from his wife and their two children, a son and a daughter aged 7 and 5 respectively.  The children are under the care of the Social Welfare Department.

6.  The defendant worked as a warehouse worker and a cleaner.  At the time of his arrest, he had been unemployed for almost a year and relied on the assistance of Comprehensive Social Security Assistance for subsistence.

7.  In mitigation, the defence submitted that the time of the offence was close to Chinese New Year and the defendant wanted to visit and spend time with his children.  However, he did not have money to give his children, so he resorted to the commission of the present offence.

Sentence

8.  The defence agreed that this is a case of pickpocketing.

9.  In HKSAR v Ngo Van Huy CACC 107/2004, the Court of Appeal indicated that a guideline sentence of 12 to 15 months after trial was appropriate for a first-time offender.  It set out factors that could be considered aggravating for which sentence should be increased at the starting point.

10.  The defendant has 44 convictions.  During the period of 1998 to 2023, the defendant was convicted of 24 offences, almost all of which involved the commission of theft or attempted theft offences, including 15 pickpocketing cases.  He was sentenced to substantial imprisonment terms, however, that did not seem to have any deterrent effect on him.  I consider him a recidivist.  It was also noted that he was sentenced to a 12 months’ imprisonment term for his last conviction on 6 March 2023.  It meant that he committed the present offence shortly after his release from imprisonment.  I consider these to be aggravating factors.

11.  The defence cited authorities including Ngo Van Huy, HKSAR v Liu Lin Feng CACC 206/2011, HKSAR v Chiu Suet Yee, Angel CACC 105/2010 and HKSAR v Tsui Chiu Kwai CACC 452/2011.  I have considered these authorities.

12.  In the present case, the property involved was a mobile phone.  Mobile phones invariably contain a certain of amount of personal information and data, the loss of which would cause great inconvenience to the victim.  Mobile phones have substantial resale value in the secondary market.  The defence referred the Court to the case of Liu Lin Feng.  It was held in Liu that 15 months’ imprisonment was an appropriate starting point for the theft of mobile phones.

13.  I agree that the present case did not involve the use of weapons.  There was no evidence that the offence occurred in a crowded place.  The defendant acted alone and his actions were opportunistic in nature.  He placed the stolen phone back into the pocket of the victim, as a result the victim did not suffer any loss.

14.  I have considered the facts of the case, factors relevant to sentencing and submissions from the defence.  I adopt a starting point of 15 months’ imprisonment.  I consider the fact that the defendant committed the present offence shortly after his release from imprisonment, and his numerous previous convictions including 15 pickpocketing offences to be particularly serious. These aggravating factors warrant an increase of 13 months’ imprisonment term at the starting point.

15.  The defendant pleaded guilty, he is entitled to a one third deduction to his imprisonment term.  Therefore, I deduct one third from the starting point of 28 months’ imprisonment, and I sentence the defendant to an imprisonment term of 19 months.