HKSAR v. DINH THI-HA

DCCC591/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 591 OF 2012

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to an offence of theft, contrary to section 9 of the Theft Ordinance, Cap.210. The offence is commonly known as pickpocketing.

2.  You have admitted that on 26 May 2012, at the Forever 21 shop at the Capitol Centre in Jardine’s Bazaar, Wan Chai, you stole an iPhone valued at about $5,000, the property belonging to Leung Chi-ying.

3.  At about 4 pm that day, a Saturday, Madam Leung was shopping at Forever 21.  She noticed that she was being followed by four to five strangers in the shop.

4.  About 45 minutes later, she felt someone touching the handbag she was carrying.  She looked and saw you had opened her handbag and had taken out her iPhone.

5.  As she saw you were holding her iPhone in your hand, she grabbed your hand.  You then struggled and pushed her hands away and threw the iPhone onto the ground and fled.

6.  Madam Leung cried out for help and chased after you.

7.  At the material time, the shop and the shopping centre were crowded.

8.  A security guard heard Madam Leung crying out for help and saw Madam Leung pointing at you, who was at that time pushing away customers on the escalator.

9.  The security guard, therefore, gave chase and intercepted you.

10.  Soon after two plainclothes police officers arrived and conducted an enquiry with you.  At that juncture, Madam Leung came and identified you as the person who had stolen her iPhone earlier.

11.  You were arrested and cautioned, and under caution, you remained silent.

12.  Madam Leung’s iPhone was not recovered.

13.  CCTV of the shop captured you and Madam Leung having a struggle.

14.  Defendant, you are not legally represented today and you had confirmed with me that you do not wish to be legally represented and have confirmed with me that you seek to represent yourself.

15.  You are aged 39 and are Vietnamese, having come to Hong Kong as a refugee in 1988.  You acquired your Hong Kong permanent residence status in 1992.

16.  You have been educated up to primary school level and are married.

17.  As to your previous criminal record, you have confirmed and agreed that you have been to court on 21 previous occasions, and of those 21 occasions, you have 27 previous convictions.  The first conviction was in 1994 for theft and your last conviction was on 8 July 2011 for theft.

18.  You have 16 similar convictions of theft.  Of those 16 previous convictions, 13 are theft by pickpocketing. In fact, since 2003, 13 of your convictions were for theft by pickpocketing. That is, of the last 16 convictions since 2003, 13 were for pickpocketing.

19.  I had explained to you prior to mitigation the Court of Appeal case of CACC107/2004, HKSAR v Ngo Van Huy, which set down tariffs and guidelines for the offence of pickpocketing.

20.  You did not wish to address me on any matters that I brought to your attention in that case.  As you were self-represented, I also explained to you what was meant by mitigation and asked you to address me on any points of mitigation.

21.  In mitigation, you very briefly said, “I hope your Honour can impose a lenient sentence,” and you had nothing further to add.

22.  Defendant, as I have already explained to you the case of Ngo Van Huy, this case before me is a pickpocketing case of which you are a repeat offender in a crowded area.

23.  The fact that Madam Leung, the victim, was followed by four to five strangers in the shop is of no relevance to my sentence, as the prosecution accept that there is no evidence of this being a group pickpocketing or an offence being committed in conjunction with another.

24.  You are clearly a persistent offender.  Since 2003, you have committed 13 pickpocketing offences.  On each of those occasions, you were dealt with in the Magistracy and received sentences of between 8 months’ imprisonment suspended for 2 years, to a maximum of 12 months’ imprisonment.

25.  This is the first time you have appeared in the District Court.

26.  It appears that you are not deterred by the sentences that have been passed upon you previously.

27.  The item you had stolen was an iPhone valued at $5,000, and as one knows, nowadays a lot of information and personal data are kept in these phones.  It is not just the value of the phone that you have deprived the owner of.

28.  For this offence, defendant, I pass upon you the following term of imprisonment.

29.  Defendant, in this case, I start at the highest starting point range of 15 months’ imprisonment.

30.  From that starting point, there is an aggravating factor of you being a persistent offender - that is, a person with an appalling previous criminal record for theft, particular pickpocketing - I shall add a further 9 months’ imprisonment.

31.  There also exists the aggravating feature that this offence was committed in a crowded shop.

32.  I, therefore, add another 3 months to your sentence.

33.  That makes a total of 27 months’ imprisonment.

34.  However, I recognise the greatest and strongest mitigating factor on your behalf is that of your plea of guilty, and giving you the usual and appropriate discount of one-third for your plea of guilty, you shall be sentenced to a term of 18 months’ imprisonment.