HKSAR v. TA DINH HAI also known as AU VAN TINH

DCCC 624/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 624 OF 2013

----------------------------

----------------------------

----------------------------

Reasons for Sentence

----------------------------

Charges and facts

1.  In the afternoon on 23 May 2013, the defendant snatched the necklace, valued at $9,020, from a lady in the street.  Her cry for help was responded with swift chasing and subduing by two civic-minded passers-by and eventually the police. He was arrested soon after he had thrown the necklace onto the ground.  This constituted the 1^st charge, theft by snatching.  He admitted to the police to have hidden in a truck on its way to Hong Kong 2 days before the snatching.  This constituted the 2^nd charge, unlawful remaining in Hong Kong.  He was in breach of a deportation order issued in June 1998.  This constituted the 3^rd charge, breach of deportation order. 

Personal background and mitigation

2.  The defendant was born in Vietnam.  He is now aged 47 years.  His parents had passed away.  He had received 7 years’ education in Vietnam equivalent to F. 1 level of Hong Kong.  He is married and has to support an ailing wife and 2 sons who are still at school.  He last worked as a driver in Vietnam before the present offences.  He came to Hong Kong to look for a job.  Before he managed to contact his friends, he was driven to snatching the necklace by 2 days’ hunger. 

3.  He had 1 previous conviction theft, 4 for unlawful remaining and 2 for breach of deportation order.  His said immigration records are a concern for aggravating his present sentences.           

Sentencing considerations

4.  There are no sentencing guidelines for theft by snatching.  I shall put its criminality between pickpocketing and robbery.  Simple act of snatching shall be much nearer to pickpocketing.  The sentencing guidelines for pickpocketing have pitched at 12 – 15 months as the starting point for a first time offender in the absence of aggravating factors (HKSAR v Ngo Van Huy [2005] 2 HKLRD 1).  Theft by simple snatching may warrant 15 months as a starting point of which HKSAR v Chan Sin Leung CACC 48/2006 is an example.  A subsequent persistent offender was given 2 years as the starting point for each of his snatching (HKSAR v Lee Chi Man CACC 387/2006). Another example of theft by simple snatching resulted in 12 months as the starting point (HKSAR v Yeung Kam Tung CACC 427/2012).  Depending on the facts of the case in question, a starting point of about 15 months appears to be within range.             

5.  It is well-settled that an illegal immigrant shall receive 15 months’ imprisonment on a guilty plea and a repeat offender shall receive a higher sentence (The Queen v. So Man-king and Others [1989] 1 HKLR 144). 

6.  The customary starting point for breach of deportation order is 3 years (HKSAR v Nguyen Tuan Anh [2004] HKCU 44, HKSAR v Pham Van Tuan [2009] HKCU 776).   

7.  In HKSAR v Bui Van Kai CACC 175/2012, the Court of Appeal reviewed the authorities (HKSAR v Nguyen Cong Su CACC 286/2012, HKSAR v Pham Van Hung CACC 14/2011) and regarded as apposite concurrent sentences in sentencing the dual offences of unlawful remaining and breach of deportation order. 

Sentencing this defendant

8.  I take 15 months as the starting point for the 1^st charge.  It becomes 10 months upon the guilty plea.  I take 18 months as the sentence for the 2^nd charge upon the guilty plea.  I take 3 years as the starting point for the 3^rd charge.  It becomes 2 years upon the guilty plea.  The 2^nd charge shall run concurrently with the 3^rd charge in the sentence.  The 1^st charge calls for a consecutive sentence, though. 

9.  By totality, I order 4 months for the 1^st charge to be concurrent with the 2^nd and the 3^rd charges.  The overall sentence shall be 2 years and 6 months.