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DCCC 229/2021
[2021] HKDC 642
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 229 OF 2021
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HKSAR |
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DINH XUAN HAI
(also known as DANG XANHAI,
DINH XUANHAI and TING CHUN HOI) |
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| Present: |
Ms Yanky Lam, counsel on fiat, for HKSAR. |
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Defendant appeared in person[1]. |
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REASONS FOR SENTENCE
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1. The defendant pleads guilty to one charge of theft, contrary to section 9 of the Theft Ordinance[2].
2. Full particulars of the offence are set out in the summary of facts admitted by the defendant today. The theft is one of pickpocketing and was captured on CCTV.
3. In summary at around 18:50 hours on 29 December 2020 the police, including Woman Sergeant 9732, were conducting anti-crime patrol in plainclothes in Mong Kok when they spotted the defendant acting furtively by paying attention to the personal belongings of other people.
4. The police followed the defendant to Dundas Street at which point the defendant suddenly turned round and walked towards Woman Sergeant 9732[3].
5. Woman Sergeant 9732 also turned round after which she felt her mobile phone being taken from the right pocket of her jacket which was tied around her waist. Woman Sergeant 9732 immediately turned round and saw the defendant holding her mobile phone. The defendant was arrested and the mobile phone recovered.
6. The CCTV footage has been played in court[4]. Four screen captures have also been submitted to court together with five photographs showing where Woman Sergeant 9732 had placed her mobile phone in her jacket[5].
7. Under caution the defendant admitted he had just been released from prison and stole the mobile phone because he had no money.
Mitigation
8. In passing sentence, I have carefully considered the submissions of the defendant, who is 60, came to Hong Kong from Vietnam in 1988, is married with two children living in Hong Kong and was unemployed at the time of arrest [6]. In court the defendant explains that he had no choice but to pickpocket otherwise he would die of hunger.
Guidelines
9. In HKSAR v Ngo Van Huy the Court of Appeal confirmed the guideline sentence for pickpocketing after trial is 12 to 15 months for a first time offender, where there are no aggravating features[7].
10. In determining where in the range of 12 to 15 months a sentencing court should commence will depend on the facts of the case including the circumstances of the theft; the value of the property stolen; the age or vulnerability of the victim and the expertise used in the theft.
11. In HKSAR v Liu Lin Feng the Court of Appeal held that a starting point of 15 months’ imprisonment was appropriate for theft of a mobile phone[8], the same starting point as in Ngo Van Huy, which also involved theft of a mobile phone.
12. I am satisfied a starting point after trial of 15 months’ imprisonment is appropriate.
13. Aggravating features include where the offence is committed in a place in which the public is at particular risk such as crowded shopping areas where the pedestrian traffic is heavy and where the accused is a repeat offender or, worse still, a persistent offender.
14. The three minutes of the CCTV footage show that at the time Dundas Street was busy with many pedestrians and shoppers on the street. I enhance the starting point by 3 months to 18 months’ imprisonment.
15. The defendant has appeared in court on 26 occasions amassing a total of 28 convictions with 22 offences of dishonesty, 11 specifically stated to be pickpocketing. The defendant last appeared in court on 21 April 2020 when he was sentenced to 15 months’ imprisonment for one offence of pickpocketing.
16. Ms Lam informs the court the defendant was released from prison on 4 December 2020. The present offence was committed just over three weeks later on 29 December 2020. By reason of the defendant’s persistent offending I am satisfied the starting point is to be increased by 9 months to 27 months’ imprisonment.
17. Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 18 months’ imprisonment.
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(D. J. DUFTON) |
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District Judge |
[1] Legal Aid was discharged upon the defendant refusing to meet the assigned legal team. See letter from the Legal Aid Department dated 21 May 2021. In court the defendant said he did not want a lawyer. The court fully explained all stages of the proceedings to the defendant.
[2] Cap 210.
[3] Ms Lam explained that after the defendant turned round and walked towards Woman Sergeant 9732, the Woman Sergeant also turned round.
[4] 18:50:00 – 18:53:06
[5] The CCTV footage between 18:52:38 and 18:53:07 and the screen captures show, inter alia, the time after the defendant had turned round and was following behind the woman sergeant; the mobile phone being taken out of the jacket pocket of the woman sergeant; the woman sergeant realising her mobile phone had been taken; the defendant holding the mobile phone in his hand and the defendant being arrested.
There is a difference of between five seconds and thirty-three seconds between the CCTV footage and the screen captures. I was satisfied what was captured on the CCTV footage was the same as seen in the four screen captures. The police officer who made the screen captures and was in court was unable to explain why this happened. Ms Lam gave an undertaking to send to court copies of the screen captures with the correct time.
[6] Also see the antecedent statement the contents of which were explained to the defendant and agreed by the defendant.
[7] [2005] 2 HKLRD 1.
[8] CACC 206/2011 at §§34-36.
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