HKSAR v. DINH DINH-LOI

DCCC323/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 323 OF 2012

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Reasons for Sentence

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The Charge

1. The defendant pleaded guilty to a charge of theft laid under section 9 of the Theft Ordinance, Chapter 210.  The offence took the form of pickpocketing.

The Facts

2. The facts of the case can be summarised as follows.  At 2.40 pm on 17 February 2012, two police officers were on patrol at Luk Yuen Street, Tuen Mun, New Territories.  They saw the defendant acting furtively.  At the material time, both sides of the street were occupied by grocery stalls and were crowded. 

3. The defendant was observed following and then approaching a young female (hereinafter referred to as “the victim”), who was purchasing food at Wing Hing Fruit Stall located on the same street.  Having stood behind the victim, the defendant inserted his hand into the victim’s jacket and took out a mobile phone therefrom.  He was seen to have put the same mobile phone into his own jacket pocket and left the scene quickly.

4. The police officers tried to intercept the defendant and then revealed their police identity but were ignored by the defendant.  Eventually, the defendant was stopped.  Upon search, the victim’s phone was recovered from the defendant’s jacket.  Under caution, the defendant admitted the offence in Punti and explained that he intended to steal the phone for sale as he was short of money.  Later, with the assistance of a Vietnamese interpreter, the defendant confirmed his admission.

(Discussion re Brief Facts)

The Defendant’s Background

5. The defendant, aged 48, is a Vietnamese.  In 1991, he had his very first conviction in Hong Kong.  In the subsequent 20 years, the defendant had been to the Magistrates’ Courts on 44 occasions relating to some 68 offences.  Of these offences, 10 were dishonesty-related, including 4 pickpocketing convictions. 

6. The defendant is undoubtedly a recidivist and a professional criminal.  He has been to prison on numerous occasions on terms ranging from 14 days to 16 months.  His last conviction was in March 2011 when he was given a sentence of 14 months for a theft charge.  He was then released on 7 January 2012.  In six weeks’ time, he was caught in pickpocketing the victim of this case. 

7. The courts of Hong Kong have given the defendant many chances in the past, but he did not cherish nor appreciate them. There was no sense of remorse from the defendant of his misdeeds.

Sentencing Guidelines

8. The Court of Appeal in HKSAR v Ngo Van Huy CACC107/2004 remarked that:

“(1) Theft by pickpocketing can be regarded as the type of offence that society severely and rightly condemns. Although in many cases, the value of the items stolen may not amount to much, the significant degree of inconvenience, the relative case with which it can be effected by a direct invasion of or about the person and privacy of those minding their business in public places, and the adverse reputation that this type of crime collectively brings upon a city makes this offence a particularly serious one. It is one which attracts, justifiably in our view, a heavy penalty.

(2) The guideline sentence of 12 to 15 months after trial is therefore appropriate for a first-time offender, and this is an immediate custodial sentence, not a suspended one.

(3) Of course, account must be taken of the existence of any aggravating, or particular mitigating, features before the court.

(4) Aggravating features included:

(a) The presence or use of a weapon...

(b) Where the offence is committed in a place in which the public is at particular risk, such as crowded places like the MTR or the racecourse, crowded shopping areas where the pedestrian traffic is heavy.

(c) If the accused commits the offence in conjunction with another, the sentence should be higher... and

(d) Where the accused is a repeat offender or, worse still, a persistent one...”

Initial Starting Point

9. The Court of Appeal in HKSAR v Chiu Suet Yee, Angel CACC105 of 2010 held that:

“In selecting an initial starting point within the 12 to 15 months range, the sentencing court will need to avoid double counting, that is taking into account a matter later considered to be an aggravating factor enhancing the starting point of sentence.”

10. There was nothing unusual in the circumstances of this case, and this court is prepared to adopt an initial starting point of 12 months’ imprisonment. 

Aggravating Factor

11. The aggravating features that the offence was committed in crowded public areas and that the defendant is a habitual offender of the same kind of offence would justify the court to impose a higher sentence.  In respect of the latter feature, the Court of Appeal in Ngo case has stated that:

“The defendant was a repeated offender or a persistent one. Where there were repeat offences of the same kind, the defendant’s previous record was likely to be an aggravating feature where this demonstrated in particular either the need to impose a deterrent sentence (the previous ones not having apparently had this effect), or the need to protect society from criminals like him. Where a poor previous record for similar offences existed, a court will be justified in imposing a substantially higher sentence.”

12. Taking into account the bad previous record of the defendant for dishonesty and pickpocketing offences into consideration, this court considers an increment of 6 months’ imprisonment would be appropriate.  The fact that the offence was committed in a crowded public area would warrant a further increment of 3 months’ imprisonment.

Final Starting Point

13. Having considered all the circumstances of the case, including criminality of the offence, the culpability of the defendant and the guidelines set out by the Court of Appeal, and the mitigation submitted by the defence lawyer, this court would consider an appropriate starting point of sentence for 21 months’ imprisonment in this case.  Such sentence is reduced by one-third by reason of the defendant’s guilty plea to 14 months’ imprisonment. 

14. This court now imposes a 14 months’ imprisonment.