HKSAR v. NGUYEN THU HA

DCCC 468/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 468 OF 2017

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Reasons for Sentence

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1.  The defendant pleaded guilty to 9 charges of theft[1] and one charge of going equipped for stealing[2]. At the request of the prosecution, one remaining charge of theft (charge 8) has been ordered to be kept on file, not to be proceeded with against the defendant without the leave of court.

Summary of facts

2.  At around 4:05pm on 8^th March 2017, The defendant and one Tran Thi Tu Ngan (“Tran”) were intercepted by Police officers upon getting off a taxi in Sham Shui Po.

3.  The defendant’s luggage and the plastic bag that Tran was carrying were searched and 87 pieces of clothing items and 40 hangers were found. They belong to Cotton On Group and are worth $14,553. They form the subject matter of charge 7.

4.  A hook was also found in the defendant’s luggage. Under caution, the defendant said that she had stolen the clothes and hangers from ‘Cotton On’ shop in Causeway Bay, and that the hook was used to detach the anti-theft devices attached to the clothing items. This hook forms the subject matter of the going equipped for stealing charge (charge 11).

5.  Subsequent to the defendant’s arrest, a search warrant was obtained and executed on the defendant’s rented home in Yau Ma Tei. The following items were found.

a. 119 items of cosmetic products belonging to Sa Sa International Holdings worth $10,869 (charge 1).

b. 27 pieces of clothing items from Zara store, belonging to Inditex, worth $12,773 (charge 2).

c. 9 clothing items belonging to the ‘Hollister’ shop at number 500, Hennessy Road in Causeway Bay worth $4,410 (charge 3).

d. 450 clothing items belonging to H&M Hennes & Mauritz Limited worth about $29,000 (charge 4 and 5).

e. A further 239 clothing items belonging to Cotton On Group worth $26,321 (charge 6).

f. 92 clothing items belonging to Uniqlo Hong Kong Limited worth $7,918 (charge 9).

g. 34 tubes of toothpaste and 1 bottle of mouthwash belonging to the Dairy Farm company Limited – Wellcome, worth $1,947.80 (charge 10).

h. One bag with an aluminium lining, and a magnet (used in connection with charge 4).

6.  Under caution, the defendant admitted to stealing the items (a) to (g) above.

7.  The defendant also made the following admissions:

8.  In relation to charge 1, the defendant stole the 119 items of cosmetic products from a Sa Sa branch on her own, but she could not remember from which branch she had stolen nor the exact date, only that it was in mid-February 2017.

9.  In relation to charge 2, the defendant went alone to the Zara shop at no.25 Canton Road on a day in early February 2017 and stole there.

10.  In relation to charge 3, the defendant went alone to the Hollister shop in Causeway Bay on a day in mid-February 2017 and stole 7 to 8 pairs of trousers.

11.  In relation to charge 4, the defendant stole on a day in mid-February 2017 alone at the H&M store in Canton Road, TST. She stole some kids’ wear and stored them in her flat. The clothing items stolen on this occasion was worth about $9,000.

12.  In relation to charge 5, on another day in mid-February 2017, the defendant went with an unknown man to the H&M store in Causeway Bay and stole kids and women clothing items. The defendant gave the man some of the stolen items as well as $2,000 cash as his reward.

13.  Also in relation to charge 5, on 7^th March 2017, the defendant went with a man known as ‘lua lua’ to the H&M store at Dundas Street in Yau Ma Tei and stole kids and men’s clothing items. The defendant took the clothes from the rack and put them into the plastic bag held by ‘lua lua’. They left without paying.

14.  The items that the defendant had stolen together with another on these two occasions were worth $20,000.

15.  In relation to charge 6, the defendant went alone to the ‘Cotton On’ store in Causeway Bay alone on a day in mid-February 2017 and stole some kids’ wear there.

16.  In relation to charge 7, on 8^th March 2017, the defendant and the above mentioned Tran met up at a restaurant first and then went together to the ‘Cotton On’ store in Causeway Bay opposite of Times Square to steal.

17.  When there, the defendant left the luggage outside the shop and entered with Tran. The defendant took clothing items and put them into the plastic bag that Tran held. They left the shop without paying. The whole process lasted about 30 minutes.

18.  They were going back to Sham Shui Po when the police officers intercepted them when they were getting off the taxi.

19.  In relation to charge 9, on 6^th March 2017, the defendant went with the said ‘lua lua’ to Uniqlo shop at nos.212 of Tai Po Mega Mall and stole some kids’ clothing. The defendant took the clothes off of the racks and put them into the plastic bag that ‘lua lua’ held. They left without paying.

20.  In relation to charge 10, on 7^th March 2017, the defendant went with ‘lua lua’ to the Wellcome supermarket at Shop 32 of Tai Po Plaza and stole toothpastes, mouthwash and cosmetic products. The defendant took the goods from the shelves and put them into the plastic bag that ‘lua lua’ held. They left without making payment.

21.  The defendant gave ‘lua lua’ $1,800 as reward. They returned to the defendant’s flat by 7:06pm and then headed to the H&M store at Dundas Street to commit the theft in charge 4.

22.  As for the bag with the aluminium lining and the magnet, the defendant admitted to using the bag to prevent the anti-theft devices from triggering the alarm while the magnet was used to detach those devices in the commission of the theft in charge 4.

Previous convictions

23.  The defendant has 7 convictions from 5 court appearances. Her first 3 convictions were all for shoplifting. She was fined a total of $9,000 on 30^th September 2011.

24.  7 months later, she was sentenced to 2 months’ imprisonment for another conviction for shoplifting. The sentence was ordered to be suspended for 18 months. She was also fined $2,000.

25.  1 year and 4 months later, the defendant was sentenced to 11 months’ imprisonment for the cultivation of cannabis plant. Since she committed this offence while under a suspended sentence, the previous sentence for theft was activated with 2 months’ imprisonment order to be served consecutively to the new sentence.

26.  The defendant did not commit any criminal offence in 2014.

27.  On 29^th May 2015, the defendant was convicted for shoplifting and sentenced to 4 months’ imprisonment.

28.  The defendant did not commit any criminal offence in 2016.

29.  She was last convicted on 24^th March 2017, and was sentenced to 6 weeks’ imprisonment for the offence of theft. The present set of offences the defendant is being charged with all took place before that last conviction and it will not be counted against her.

Mitigation

30.  The defendant is a Hong Kong identity card holder. She is 40 years old and was educated up to secondary one level in Vietnam. She came to Hong Kong in 1989. She is in the middle of divorce proceedings with her husband, with whom she has 4 sons, aged 10 to 22. The defendant was living alone while working as a part-time construction worker.

31.  The defendant’s mother suffers from stomach cancer. A letter written by the defendant and one by her son speak to how the defendant has been suffering serious mental and financial pressure.

32.  The defendant is the main breadwinner of the family, supporting 3 of her sons who are still studying. The defendant used to have a garment trading business but it did not work out, causing the defendant to be in some financial difficulties.

33.  It was pointed out by Mr Lee for the defendant that she had been a law abiding citizen for some 22 years after she arrived in Hong Kong. Since the defendant’s husband pays no maintenance, she has been the sole breadwinner.

34.  It was that financial pressure as well as the anxiety from her marital problem that caused the defendant to commit the present offences.

35.  Mr Lee also pointed out that the thefts were on a small scale and not very well organized. The value of the property stolen was not very high. All the property had been recovered and will be returned to the owners.

36.  Lastly, the defendant had been cooperative and assisted the Police in identifying the owners of the stolen clothing items found in her home, saving the Police a lot of time and effort.

Sentence

37.  The maximum sentence on conviction upon indictment for the offences of theft and going equipped to steal is that of 10 and 3 years’ imprisonment respectively.

38.  All the thefts involved only a small degree of planning and executed with minimum sophistication.

39.  The value of the stolen property is not small, ranging from $1,947.80 in charge 10 to $26,321 in charge 6. The overall total value is $107,791.80.

40.  All of the stolen items were recovered and will be returned to their rightful owners.

41.  Given the circumstances, I will adopt a starting point of 9 months’ imprisonment for charges 1, 2, 5, 6 and 7 based on the higher value of goods stolen ($10,869; $12,773; $20,000; $26,321; $14,553).

42.  I will adopt a starting point of 8 months’ imprisonment for charges 4 and 9 ($9,000 and $7,918) to reflect the slightly lower value of goods stolen.

43.  I will adopt a starting point of 6 months’ imprisonment for charges 3 and 10 ($4,410 and $1,947.80), again to reflect the still lower value of goods stolen.

44.  As for the offence of ‘going equipped to steal’ (charge 11), I take into consideration that the equipment concerned is just one hook for taking off the anti-theft tags. Although crucial for the commission of the theft in charge 4, it is not a very sophisticated piece of equipment and is easily obtained.

45.  I adopt a starting point of 3 months’ imprisonment for charge 11.

46.  These starting points are then subject to enhancements and discounts depending on the applicable aggravating and mitigating factors as identified below. 

Aggravating factors

Commission of offence with another

47.  In relation to the offences that the defendant had committed together with another person (charges 5, 7, 9 and 10), I find that to be an aggravating factor and will enhance the sentence for those charges accordingly.

48.  In addition to committing the offence with another, I find that the fact that the defendant had on two occasions (charge 5 and 10) offered a reward to the accomplice after the completion of the theft a further aggravating factor. The culpability of the defendant is made more serious by the fact that she was paying ‘lua lua’ for helping her in the commission of the offences.

49.  The amount of enhancement for committing the offence with another is that of 1 month’s imprisonment. The enhancement for rewarding the accomplice is 2 months’ imprisonment.

50.  Therefore, the sentence in relation to charges 5 and 10 are enhanced by 3 months to that of 12 and 9 months’ imprisonment respectively.

51.  The sentence in relation to charges 7 and 9 are enhanced by 1 month to that of 10 and 9 months’ imprisonment respectively.

Repeated offender

52.  Not counting the one on 24^th March 2017, the defendant has 5 previous convictions for theft at the time of her commission of the present offences. The 5 thefts were all committed by way of shoplifting. I find, therefore, that the defendant is a repeated offender. There is a need to enhance the sentences in relation to the thefts and the going equipped charge so as to deter the defendant and to protect the public.

53.  For this aggravating factor, I will enhance each of the charges by 1 month’s imprisonment. The enhanced sentences would therefore be:

Charge 1:  10 months

Charge 2:  10 months

Charge 3:  7 months

Charge 4:  9 months

Charge 5:  13 months

Charge 6:  10 months

Charge 7:  11 months

Charge 9:  10 months

Charge 10:  10 months

Charge 11:  4 months

Mitigating factors

54.  I find that the defendant’s full cooperation and admission a mitigating factor. Without that, it would have been difficult for the Police to identify the owners of the stolen property. For this mitigating factor, I will reduce the sentence of all but charges 7 and 11 by 1month.

55.  The reason for not reducing the sentence of charges 7 and 11 is because the defendant was caught while in possession of the stolen property and there would have been little or no difficulty for the Police to bring charges.

56.  The sentence after applying the discount for assistance to the Police would be:

Charge 1:  9 months

Charge 2:  9 months

Charge 3:  6 months

Charge 4:  8 months

Charge 5:  12 months

Charge 6:  9 months

Charge 7:  11 months (no discount for this factor)

Charge 9:  9 months

Charge 10:  9 months

Charge 11:  4 months (no discount for this factor)

57.  The other mitigating factor is the defendant’s timely guilty pleas. She is to be granted the full one-third discount.

58.  The sentences after applying the one-third discount for plea is as follows:

Charge 1:  6 months

Charge 2:  6 months

Charge 3:  4 months

Charge 4:  5.3 months

Charge 5:  8 months

Charge 6:  6 months

Charge 7:  7.3 months

Charge 9:  6 months

Charge 10:  6 months

Charge 11:  2.7 months

59.  In relation to charges 4 and 11, I find that given that the hook was used in the commission of the offence in Charge 4, they can be regarded as part and parcel of a single transaction. In the circumstances, I order that the sentence in charge 11 to be served wholly concurrently with the sentence in charge 4.

Totality

60.  The defendant can, without a doubt, be categorized as a professional thief. The offences were committed over a short period of time. They involved some planning but minimum sophistication. The overall value of the stolen property comes to just slightly over $107,000.

61.  Taking a step back and bearing in mind all the circumstances, I will order that the 6-month sentences in charges 1 and 2, the 4-month sentence in charge 3, the 8-month sentence in charge 5, and 3 months of the 6-month sentence of charge 6 to be served consecutively to each other, the balance of all the remaining sentences to be served concurrently, resulting in a sentence of 27 months’ imprisonment.

62.  The final sentence after plea for all charges is, therefore, 27 months’ imprisonment.