HKSAR v. NGUYEN VAN LOI

DCCC 148/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 148 OF 2012

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REASONS FOR SENTENCE

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1.  The Defendant has pleaded guilty to one count of theft, contrary to Section 9 of the Theft Ordinance, Cap 210, the type of theft commonly referred to as ‘pickpocketing’. As the defendant elected to speak Vietnamese, a Vietnamese interpreter was made available to him and the proceedings were translated into Vietnamese for him.

2.  Facts admitted by the defendant disclose that police officers patrolling in the Mongkok area saw the defendant near the junction of Sai Yeung Choi Street South and Shantung Street walking towards Yaumatei and he was watching the bags and jacket pockets of passers-by. The police officers followed the defendant.  They saw the defendant following the victim herein, who is aged 17 years, and her friend.  When she was near No 5, Sai Yeung Choi Street South, Mongkok, the defendant extended his right hand into the right pocket of the victim’s jacket and then quickly retrieved his right hand.  He again extended his right hand into the right pocket of the victim’s jacket and then quickly retrieved his hand.  The police officers saw that the defendant was holding a mobile phone in his right hand.  The defendant was intercepted by the police officers.  The defendant dropped the mobile phone onto the ground and there was a struggle between him and one of the police officers.  The defendant was subdued and the mobile phone retrieved from the ground.  The victim confirmed that that was her mobile phone, and that it had been kept in the right pocket of her jacket.  The defendant was arrested and cautioned, and admitted he had stolen the mobile phone because he had 3 sons and needed money.

3.  The defendant is now aged 51 years. He has 53 previous convictions in 33 court appearances, dating from 1981, 17 of which are for offences of theft or attempted theft.  Four were specifically recorded as pickpocketing offences.  His last conviction, in November 2010, was for an offence of attempted theft, when he was sentenced to 12 months’ imprisonment.  He was released from prison on 7 May 2011.  The present offence was committed on 13 January 2012, about 8 months after his release from prison.

4.  It was urged upon me in mitigation by counsel on his behalf that the appellant had been driven to commit this offence because he was unemployed after his last release from prison.  It was his eldest son’s birthday, and he wished to buy his eldest son a birthday present, and out of momentary greed, he committed the present offence.  It was also submitted that he was remorseful, as was reflected by his plea, thereby saving the time of the court and the need for the prosecution witnesses to attend.  I am told by defence counsel that the defendant is a married man.  He came to Hong Kong from Vietnam as a refugee in 1981.  His parents are now deceased, although he has some siblings in Vietnam, and two brothers overseas in USA and Denmark, but he has little contact with them.  He married his wife in Hong Kong in 1991, and they have 3 sons, aged 17 years, 15 years and 12 years respectively. Because of his criminal record, the defendant was not eligible for emigration overseas.  His wife divorced him in 2001, and emigrated to England with their three sons, and now lives in England with them.  She is unemployed and receives public assistance, whilst the boys are all studying.  She re-married the defendant in 2005.  The defendant remained in Hong Kong – because he has little skills and speaks little Cantonese, he has difficulty finding work – he had worked as a casual construction site worker and decoration worker.  He suffered TB some years ago, and now works as a cleaning worker on cruise ships when there are ships moored in Hong Kong waters.  However, this work is not stable.  Since his last release from prison, he has been receiving CSSA of about $3,000 a month. After paying the rent for his cubicle, he is unable to make ends meet.

5.  In directing myself on sentence, I considered the judgment of the Court of Appeal wherein the Court of Appeal laid down sentencing guidelines in respect of offences of theft by pickpocketing, the case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  In delivering the judgment of the court, Hon Ma, CJHC, as he then was, said:-

“9. In our view, the following guidelines and principles for this type of offence should now be made clear (and it is to be noted they differ somewhat from the way the Judge approached the matter) :-

(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 ease 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 12-15 months after trial is therefore appropriate for a first time offender. 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.”

6.  The Court of Appeal also gave examples of aggravating features.  Two of the aggravating features referred to by the Court of Appeal in Ngo Van Huy are present here – namely that the offence took place in Mongkok, a crowded shopping area where the pedestrian traffic is heavy, and that the defendant is a repeat offender.  Counsel submitted that between 1993 and 2009 he did not commit any offences of theft or attempted theft, and therefore should not be viewed as a repeat offender.  I do not accept this.  Although he did not commit offences of theft or attempted theft in this period, he had 15 court appearances and 29 convictions for other offences.  Clearly he is a repeat offender and he has an appalling record.

7.  I have also considered the judgment of the Court of Appeal in HKSAR v Chiu Suet Yee, Angel, CACC 105/2010, wherein the Court of Appeal re-affirmed the guidelines for pickpocketing offences as set out in HKSAR v Ngo Van Huy, supra McMahon J in delivering the judgment of the court, said :-

“10. A preliminary question concerns which matters influence where in the normal starting point range of 12 to 15 months’ imprisonment after trial (before taking into account aggravating factors enhancing that starting point) a sentencing court should commence.

11. In our judgment that will depend on the facts of the case, that is, the circumstances of the theft itself, other than those matters which may be accounted for later as aggravating factors. Such matters as the value of any property stolen, the age or vulnerability of the victim and the expertise used in the theft will determine at what part of the range the appropriate starting point commences. Each case will be fact sensitive ……

12. 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.”

8.  Having considered the circumstances of the theft itself, including that the victim herein was a 17 years old girl, and the value of the stolen property as set out in the particulars of the charge and the expertise used in the theft, in that he inserted his hand into the victim’s pocket twice without alerting the victim, I find that the appropriate initial starting point is 15 months’ imprisonment.  I find that there are aggravating factors to be considered.  There has to be an increase on account of the defendant’s appalling record, the notable features of which I have set out in paragraph 3 above.  The need for a deterrent sentence for this particular defendant as well as the protection of society dictates the starting point of 15 months’ imprisonment be further increased. The offence took place in a crowded shopping area in Mongkok – that must be viewed as a further aggravating factor.  I therefore take a starting point of 27 months’ imprisonment on the charge.  Save for his plea of guilty, there is little mitigation of weight before me.  I give him the usual discount of 1/3 for his plea and sentence him to 18 months’ imprisonment.