HKSAR v. DINH THI HA

DCCC 810/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 810 OF 2014

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REASONS FOR SENTENCE

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1.  Defendant, this morning you have pleaded guilty before me to two charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.  The 1st charge is an allegation of theft by finding.  You have admitted that on 23 June 2014, in Sham Shui Po, Kowloon, you stole one Octopus card, one staff card and one cardholder, property belonging to Decal Marilou G (victim 1).  The 2nd charge is more commonly known as pickpocketing.  You have admitted that on 23 June 2014, outside Ground Floor, No 93 Fuk Wing Street, Sham Shui Po, Kowloon, in Hong Kong, you stole one mobile phone which is belonging to Lee Suk-yee (victim 2).

3.  According to the amended Summary of Facts which you have admitted, at around 4 pm on the offence day, victim 1 boarded a bus in Lai Chi Kok to Sham Shui Po, Kowloon.  She paid the bus fare by her personalised Octopus card with her name at the back of the card.  Her Octopus card and staff card were put in the same cardholder.  After making payment, she put the cardholder back to her handbag and zipped it.  She later alighted the bus and went to the Golden Computer Arcade at Fuk Wa Street, Sham Shui Po to make some purchases.  She unzipped her handbag and took out her wallet for payment.  She later realised that the cardholder together with the Octopus card were lost.  She believed that she dropped her cardholder when taking out the wallet for payment at the time and she reported the loss of her Octopus card on the following day.

4.  The 2nd charge took place at a space of about two hours after the 1st charge.  At about 6:15 pm, the lady victim 2 was shopping outside Ground Floor, No 93 Fuk Wing Street in Sham Shui Po which, incidentally, was only a few minutes’ walk from Golden Computer Arcade and, very importantly, was very crowded at the same time.  At that time, victim 2 was carrying her pink handbag which was not fitted with any zip or button on her left forearm with a mobile phone valued at HK$1,000 inside. 

5.  Suddenly, she felt her handbag moving and she looked at it at once and saw that your hand reaching into her handbag and holding her mobile phone. Victim 2 immediately asked you what you were doing, and you instantly drew back your hand, causing the mobile phone to drop onto the ground and you fled. Victim 2 then picked up her mobile phone, cried out for help and chased after you.  You were chased after by her for about two to three blocks and upon reaching the junction of Pei Ho Street and Un Chau Street, two passers-by helped her to intercept you.  You were later handed to a police officer who was in the vicinity at the time.

6.  The policeman has made inquiry with victim 2 and also yourself and you have admitted that you attempted to steal the lady’s mobile phone but failed and thereafter you fled.  Upon a search of your handbag, the Octopus card bearing victim 1’s name was found.  You told the police officers that you picked it up in Yau Ma Tei MTR Station two days ago.  You had no money and you intended to use it.   

7.  In the subsequent cautioned interviews conducted in the presence of a Vietnamese interpreter, under caution, you basically repeated what you told the police officers at the scene.  Victim 1 later confirmed with the police that the Octopus card seized from you belonged to her.  However, she confirmed that she had not been to Yau Ma Tei for the few months preceding the loss of her Octopus card on 23 June 2014. 

8.  Defendant, you are now aged 41 and you are a Vietnamese.  You came to Hong Kong in 1988 and you have received education up to primary school level in Vietnam.  You are married with one son who is now aged 17 but you have lost contact with your husband for the last 14 years.  As to your previous criminal records, you have altogether 23 convictions involving 32 charges.  Since 2003, you have committed altogether 14 charges of theft by pickpocketing. 

9.  In mitigation, your solicitor, Mr Donald Tang, acknowledged that you had no valid or effective mitigation other than the fact that you had pleaded guilty.  However, Mr Tang urged the court to bear in mind that the 1st charge is only a theft-by-finding case.  Mr Tang conceded that you had told a material lie to the police as to the fact that you had picked up the Octopus card in Yau Ma Tei two days ago before you were arrested but he still submitted that there is insufficient evidence from the prosecution to draw the inference that you had pickpocketed the Octopus card in the hours before the 2nd charge was committed. 

10.  Mr Tang also submitted that in the 2nd charge, what you had done was basically an opportunistic crime.  He said that what you had done could also be described as simple and unsophisticated and relying on the Court of Appeal decision in HKSAR v Wong Kang Sun, CACC 265/2013, he urged the court to adopt the lowest starting point, that is 12 months, before any enhancement of the sentence.

Sentencing considerations

11.  When I came to sentence, I bear in mind the Court of Appeal decision in the case of HKSAR v Ngo Van Huy in CACC 107/2004.  In that case, the victim was crossing a busy junction in Mongkok area and the appellant took the victim’s mobile phone from her jacket pocket.  The appellant also, like you, had a long list of previous convictions, including, as it were, 17 previous theft or attempted theft convictions.  The Court of Appeal in the end adopted a starting point of 15 months’ imprisonment.  The Court of Appeal then enhanced the sentence by another 9 months on account of the appellant’s appalling criminal previous records and also added another 3 months because the offence was committed in a crowded area.  

12.  You must be familiar with how the court would sentence cases like this because what I have told you just now about the sentence was exactly what you have received in your last conviction in the District Court in DCCC 591/2012 when you were given a 18 months’ imprisonment after you received a one-third discount from the aggregate starting point of the 27 months (15 + 9 + 3) adopted by your sentencing judge.

13.  Mr Tang had tried his best to persuade the court to adopt a lower starting point this time by referring to Wong Kang Sun, which, incidentally, was originally sentenced by myself in the District Court.  In that case, a lower basic starting point of 12 months was substituted instead because the Court of Appeal was of the view that I had in the course of delivering the reasons for sentence accepted that the crime was opportunistic and was also simple and unsophisticated. 

14.  I must say that in your case, however, I have every reason to believe that you had been observing the passer-bys very closely before you committed the offence and the fact that victim 2 was targeted in the end must because her handbag was an unzipped handbag and you decided to take your chance and reached your hand into her handbag.  In your case, I would not characterise your pickpocketing as unsophisticated and opportunistic.

15.  In fact, I cannot distinguish your act from the behaviour of the appellant in Ngo Van Huy when he took the victim’s mobile phone from the lady victim’s jacket pocket.  I believe what the Court of Appeal had decided in Wong Kang Sun must be viewed as fact-sensitive and should not be a proposition that any pickpocketing which was committed by a single defendant without any accomplice and implement would always warrant a basic starting point as low as 12 months.

16.  Furthermore, in charge 2, the item you have stolen is a mobile phone which contains a lot of information and personal data.  Although the value of the phone was said to be only $1,000, the inconvenience that you have caused to victim 2 could be imagined.  Luckily, in her case, the phone was retrieved.  The nature of the stolen property was also one of the reasons why I considered that the nature in respect of this pickpocketing offence could not be characterised as basic and simple as the value and the importance a mobile phone to a victim could not be considered as low as compared to the two stolen staff cards in Wong Kan Sun. 

17.  Accordingly, I would sentence you to the following terms of imprisonment.  I would start with the Charge 2 first.  I would still adopt a starting point of 15 months’ imprisonment.  This starting point will be further enhanced on account of the fact that you are a persistent offender and, in particular, you have appalling previous criminal records for pickpocketing. I shall add a further 9 months’ imprisonment.

18.  There is another aggravating factor in that the offence was committed in a crowded street.  I therefore add another 3 months to your sentence.  The total starting point before reduction is therefore 27 months’ imprisonment.

19.  In the 1st charge, it is highly suspicious that you have stolen the cardholder and therefore the staff card and also the Octopus card in a similar way as you did in the 2nd charge.  You have told lies both to the arresting officers and also to the investigating officers of how you picked up the Octopus card which could not have been true according to victim 1.  However, the prosecution has to bear the burden of proof and I agree that there is no concrete evidence to prove beyond reasonable doubt that you indeed pickpocketed the cardholder from the handbag of victim 1.  The personalised Octopus card is of value because it will be topped up automatically. 

20.  However suspicious the circumstances may be, I would still treat the case as a theft by finding and bearing in mind all the features in this case, I would adopt 6 months as a starting point.

21.  As your solicitor, Mr Tang, has rightly acknowledged, the only and effective mitigation in your case is your plea of guilty.  After giving you the usual discount of one‑third for your plea of guilty, for the 1st charge, you will receive a sentence of 4 months’ imprisonment.  For the 2nd charge, you will receive a sentence of 18 months’ imprisonment. 

22.  Both charges contain two separate and distinct offences.  The nature and the circumstances of committing the two offences are entirely different.  I also took into account the fact that there are two different victims in this case. Bearing in mind that the sentence for the 1st charge is now only 4 months, I have decided that you have to serve these two sentences wholly consecutively.

23.  In the end, you have to serve a total imprisonment of 22 months.