HKSAR v. NGUYEN XUAN-CUONG

DCCC20/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 20 OF 2012

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to one charge of theft, contrary to section 9 of the Theft Ordinance, Cap.210, which is in this instant case a theft by pick-pocketing.

2.  You have admitted that on 8 December 2011 at a vegetable stall at Pei Ho Street Market, Sham Shui Po, you stole a wallet containing a China identity card, a bank card, cash of $410 Hong Kong currency, cash of ¥702 renminbi, one Octopus card and a membership card, the property belonging to Chen Chenlian. 

3.  On the day in question, a team of police officers were conducting an anti-theft patrol around the market.  At about 5.10 pm that day, they found you wandering inside the market and looking around suspiciously, so they put you under observation.   

4.  About 2 minutes later, they saw you approach the victim, Madam Chen, who was at a vegetable stall picking vegetables together with other customers there. They saw you unzip the middle compartment of the bag with both of your hands.  You looked inside but you did not take anything out.  You then unzipped another compartment of her bag and took out the wallet from inside.  You then left the stall with the wallet.  At that time, the victim was not aware of what you had done.    

5.  Fortunately, a police officer had witnessed you pick-pocketing the victim’s bag and followed you, another officer followed the lady.  You were stopped and intercepted outside the market by the officer and after a body search was conducted on you, the wallet was found in your left jacket pocket.  You were arrested and cautioned, and under caution you admitted that you had stolen the wallet because you had no money.      

6.  You are 44 years of age and have 53 previous convictions in 45 court appearances, 27 of those previous convictions are related to dishonesty offences, 26 of those are related to theft convictions, the other is an attempted burglary.  Since the police started to make a record on the criminal records since 2002, you have had a total of six previous convictions for pick-pocketing since 2002.  

7.  Your solicitor, Miss Anthea Chan, has made very thorough and full mitigation on your behalf today.  She has urged this court to be sympathetic to you in view of the very sad plight of your past and your life in Hong Kong.      

8.  You came to Hong Kong by boat from Vietnam when you were 14 years old and you came with an elder brother, who is 12 years older than you.  Upon your arrival, you lived at the Vietnamese refugee camp and was granted Hong Kong residency in 1997.  However, in view of your limited education and skills and incompetency in the local dialect, you have had much difficulty in securing any proper employment.        

9.  Since 2000, you have lived off CSSA and lived in a small cubicle measuring 10 by 10 feet, paying a rent of $1,250 a month, which is deducted from your $3,000 a month subsidy, leaving you very little to live on of $1,750 per month.  In view of your difficult circumstances and your difficulties in maintaining employment, you find that you are in need money and commit these crimes.    

10.  Miss Chan has also informed me about the fact that each time you are in prison you lose your bed space and every other belonging that you own as the landlord will rent your bed space to another occupier and throw everything you own away, leaving you only what you are wearing on your back, and when you are released from prison, you do not actually receive any assistance from the government till about a month later when you have to re-apply for CSSA.  You are unable to rely on your brother as he is suffering from a mental illness and he also lives in more or less the same conditions as yourself.      

11.  Miss Chan has asked me to be lenient on you given your very sad background and situation.  Miss Chan has also confirmed to me to the sentences laid down by the case of HKSAR v Ngo Van Huy, CACC107/2004.  That case lays down very clearly the tariff for pick-pocketing.

12.  Your criminal record of itself shows that despite the numerous occasions to which you have been convicted of theft, of dishonesty offences, and sentenced to imprisonment, you continue to take the risk and commit further similar offences.  The sentences have not, it appears apparent, deterred you from committing further similar offences.  The very unfortunate position you are faced with by losing all your belongings has also not deterred you from committing any further offences.        

13.  Since 2002, you have in 2002, 2003, 2004, 2005, 2008 and 2009 continued to commit pick-pocketing offences.  You are in my view someone who is a professional pick-pocketer.  On this occasion, it can be seen that you unzipped the lady’s bag the first time, looked inside, zipped it back without her even noticing or feeling that.  You then unzipped another part of her bag and were successful in stealing the wallet.  I feel in this case I am unable to pass any more lenient sentence than that as is directed by the Court of Appeal.        

14.  In the circumstances, defendant, you committed this offence within six months from your release from prison on 15 June 2011.  You had been sentenced for attempted theft in September 2009 to 18 months’ imprisonment.    

15.  In sentencing you, I take a starting point of 15 months’ imprisonment, which is at the higher end of the range as you are not a first offender but a repeat offender, and given of course your appalling previous record for theft, that starting point should be increased as it is an aggravating feature, and I add a further 9 months to 15 months.  There also exists the aggravating feature that the offence was committed in a crowded area, that is a market filled with customers.  I add a further 3 months to the sentence. 

16.  Therefore, the total sentence had I convicted you after trial would have been to a term of 27 months’ imprisonment.  However, given the fact that you have pleaded guilty and saved the court time, that sentence shall be reduced by one-third and you shall be sentenced to a total term of 18 months’ imprisonment.