HKSAR v. NGUYEN VAN DUC

 DCCC45/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 45 OF 2010

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Reasons for Sentence

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1.  Defendant pleaded guilty to one charge of theft. In sentencing, I have taken into account the whole circumstances of the case, including its nature and facts, background of the defendant and mitigation put forward on his behalf.

2.  The facts of the case are simple. At about 6 pm on 15 December 2009, in Argyle Street, Mongkok, the defendant approached a group of female students who were waiting outside an MTR exit. He then stood very closely to one of the girls and removed her mobile phone from her pocket by hooking with his finger the string of the mobile phone which was sticking out from her pocket. His conduct was seen by a police officer who immediately intervened. The defendant dropped the mobile phone on the ground. The officer arrested him.

3.  Under caution, the defendant admitted to have stolen the mobile phone since he had no money for food. The mobile phone cost about $2,500.

4.  In consideration of the sentence, I have had regard to the case of HKSAR v Ngo Van Huy CACC107/2004 which was drawn to my attention by learned counsel for the prosecution. As the court said, this sort of offence can be regarded as one which the society severely and rightly condemns. I see no reason to depart from the guidelines and principles set out in that case. An immediate custodial sentence should be imposed, even if the defendant is a first-time offender. In fact the defendant is a person with an appalling criminal record. Since 1989, he had on 35 previous occasions been convicted. The offence which he had committed included 8 thefts and 5 attempted thefts. Since 2002, he has committed 4 cases of pickpocketing.

5.  In all the circumstances, I am of the view that the circumstances of the case attract a starting point of 15 months. Taking into account the defendant’s poor record, there is a need for a deterrent sentence. The protection of society dictates that a further 6 months should be added to the starting point. The present offence was committed at busy hour at a crowded road in Mongkok. I am of the view that it was committed in a place where the public is at particular risk and therefore an aggravating feature existed. For this aggravating feature, I add 3 months to the starting point.

6.  Another aggravating feature is the prevalence of the offence. Though there has been no specific information produced by the prosecution nor was there a formal application for enhancement of sentence on the grounds of prevalence, experience tells that this sort of offence is numerous. The court too often has to deal with cases of this nature. Without the benefit of statistics, I add a further 3 months to the starting point.

7.  I note the case of Tam Wai Pio [1998] 4 HKC 291 which concerns enhancement of sentence following an application under OSCO. In the present case, there is no such application. I am of the view that it is appropriate to reflect the aggravating features in the starting point rather than making an enhancement at the final stage.

8.  In all the circumstances, I adopt a starting point of 27 months. The defendant pleaded guilty. He is entitled to a one-third discount. Having considered the whole circumstances, I am of the view that this is the extent of discount the defendant is entitled to. I therefore sentence the defendant to 18 months’ imprisonment for this offence.

9.  At the moment, the defendant is serving an imprisonment term of 4 months for an offence contrary to the Dutiable Goods Commodities Ordinance. He is expected to be discharged for that offence on 23 March this year. In the circumstances, having regard to totality, I order that the present sentence be run concurrently with the sentence the defendant is now serving in the case of KCCC6542 of 2009.