HKSAR v. NGUYEN THU HA

CACC 376/2017

[2018] HKCA 368

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 376 OF 2017

(ON APPEAL FROM DCCC NO 468 OF 2017)

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J U D G M E N T

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1.  By way of a Form XI Notice filed on 23 November 2017, the applicant seeks leave to appeal against an overall sentence of 27 months’ imprisonment imposed on her by HH Judge Douglas Yau (“the judge”) in the District Court, following her pleas of guilty to nine charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charges 1-7, 9-10); and one charge of going equipped for theft, contrary to section 27(1) of the same Ordinance (Charge 11)[1].

Summary of facts

2.  At about 1605 hours on 8 March 2017, the applicant was intercepted by police officers with another person, Tran Thi Tu Ngan (“Tran”), when they alighted from a taxi in Sham Shui Po, Kowloon.  Upon search, the officers found in the luggage and bags belonging to applicant and Tran the following stolen items: (a) 87 garments and 40 hangers, valued at $14,553 (Charge 7); and (b) a metal hook (Charge 11).

3.  The applicant admitted under caution that she had stolen the garments and hangers from Cotton On store in Causeway Bay, Hong Kong, and that the hook was used for detaching the anti-theft devices attached to the clothing items.

4.  The following items were later seized from the applicant’s residence in Yau Ma Tei, and subsequently identified by their respective owners:

(a)   119 items of cosmetic products belonging to Sa Sa International Holdings, valued at $10,869 (Charge 1);

(b)   27 garments from Zara store, belonging to Inditex, valued at $12,773 (Charge 2);

(c)   9 garments from the Hollister shop at No 500, Hennessy Road, Causeway Bay, valued at $4,410 (Charge 3);

(d)   450 garments belonging to H & M (Hennes & Mauritz) Ltd, valued at about $29,000 (Charges 4 and 5);

(e)   A further 239 garments belonging to Cotton On Group, valued at $26,321 (Charge 6);

(f)   92 garments belonging to Uniqlo Hong Kong Ltd, valued at $7,918 (Charge 9); and

(g)   34 tubes of toothpaste and 1 bottle of mouthwash belonging to Dairy Farm Company Ltd – Wellcome, valued at $1,947.80 (Charge 10).

5.  Other than the above, a bag with an aluminium lining and a magnet were also found in the premises, which items had been used in the commission of Charge 4.

6.  Under caution, the applicant admitted that she stole the items listed above in paragraph 4, and supplied the following details of the thefts:

Charge	Date	Details
1	mid-Feb 2017	She stole from an unknown Sa Sa branch.
2	early Feb 2017	She stole from Zara shop at No 25 Canton Road.
3	mid-Feb 2017	She stole from the Hollister shop in Causeway Bay.
4	mid-Feb 2017	She stole from H & M store in Canton Road, she used the bag with the aluminium lining to prevent the anti-theft devices from triggering the alarm, and used the magnet to detach the said devices.
5	mid-Feb 2017	She went with an unidentified male to steal from H & M store in Causeway Bay and gave the man some of the stolen items and $2,000 as his reward.
	7 March 2017	She went with a male known as Lua Lua to the H & M store at Dundas Street, stole the items and put them in the plastic bag held by Lua Lua.
6	mid-Feb 2017	She stole from Cotton On store in Causeway Bay.
7	8 March 2017	She went with Tran to Cotton On store in Causeway Bay and put stolen items into the bag held by Tran.
9	6 March 2017	She went with Lua Lua to Uniqlo shop at Tai Po Mega Mall and put stolen items into the bag held by Lua Lua.
10	7 March 2017	She went with Lua Lua to Wellcome supermarket at Tai Po Plaza and again put stole items into the bag held by Lua Lua.  She gave Lua Lua a reward of $1,800, after which they proceeded to commit the crime in Charge 4.

Reasons for sentence

7.  The judge noted that the applicant had 7 previous convictions from 5 court appearances: 6 of her convictions being for theft, 5 of them being for shoplifting.  Her last conviction for shoplifting was in May 2015.  As to her background, the applicant was 40 years of age at the time of sentence and had come to Hong Kong in 1989.  She was divorced, with four sons aged 10 to 22.  She was a part‑time construction worker.  Two mitigation letters from the applicant’s mother and her son respectively were submitted, claiming that the applicant had been suffering serious mental and financial pressures at the time of the offences.

8.  It was submitted that it was those pressures, as well as the anxiety concerning her marriage, which had caused the applicant to commit the present offences. It was also submitted that the thefts were on a small scale and not very well organized; moreover, all of property had been recovered and could be returned to its owners.  The applicant had been cooperative with the police in identifying the owners of the stolen property.

9.  However, the judge commented that the value of the stolen property was not small; the overall value being $107,791.80.

10.  The judge adopted the starting points set out below, based roughly on the respective values of the stolen property.  He then identified two aggravating features in the offences: (i) the applicant had committed some of the offences with another person (Charges 5, 7, 9 and 10); (ii) she had on two occasions offered rewards to her accomplices (Charges 5 and 10).  For these factors, the judge enhanced the relevant sentences accordingly.

Charge	Value of property	Starting Point	Commission of offence with Anor
1	$10,869.00	9 months’ imprisonment
2	$12,773.00	9 months’ imprisonment
3	$4,410.00	6 months’ imprisonment
4	$9,000.00	8 months’ imprisonment
5	$20,000.00	9 months’ imprisonment	+1 month + 2 months
6	$26,321.00	9 months’ imprisonment
7	$14,553.00	9 months’ imprisonment	+1 month
9	$7,918.00	8 months’ imprisonment	+1 month
10	$1,947.80	6 months’ imprisonment	+1 month + 2 months

In respect of Charge 11, the judge adopted 3 months’ imprisonment as a starting point.

11.  He found that the applicant was a repeat offender in respect of the same offence, for which he further enhanced the starting points by 1 month.  At the same time, he considered the applicant’s full cooperation and admission to be a mitigating factor.  Accordingly, he reduced all the starting points by 1 month, save on Charges 7 and 11, where the applicant had been caught in possession of the stolen property with the instrument used in the commission of the offence.

12.  The Judge then applied a one‑third discount for the applicant’s timely plea of guilty and sentenced her to the following sentences:

Charge	Initial Starting Point	Commission of offence with Anor	Repeated Offender	Full Cooperation	Final Starting Point	After 1/3 Discount
1	9 months		+1 month	-1 month	9 months	6 months
2	9 months		+1 month	-1 month	9 months	6 months
3	6 months		+1 month	-1 month	6 months	4 months
4	8 months		+1 month	-1 month	8 months	5.3 months
5	9 months	+3 months	+1 month	-1 month	12 months	8 months
6	9 months		+1 month	-1 month	9 months	6 months
7	9 months	+1 month	+1 month		11 months	7.3 months
9	8 months	+1 month	+1 month	-1 month	9 months	6 months
10	6 months	+3 months	+1 month	-1 month	9 months	6 months
11	3 months		+1 month		4 months	2.7 months

13.  Finally, the judge considered the totality of sentence, ordering that the 6‑month sentences on Charges 1 and 2, the 4‑month sentence on Charge 3, the 8‑month sentence on Charge 5, and 3 months of the 6‑month sentence on Charge 6 should be served consecutively to each other, the balance of all the remaining sentences to be served concurrently, resulting in a sentence of 27 months’ imprisonment.

Grounds of appeal against sentence

14.  The applicant acts in person.  She has not articulated any grounds of appeal in her Form XI Notice.  However, this morning she has produced a touching letter from her second eldest son, who is currently studying at University.  That sets out the applicant’s domestic circumstances and the effects of the breakdown of her marriage, and pleads for a merciful outcome in view of the various difficulties which are said to have caused his mother to act as she did.

Respondent’s submissions

15.  Mr Derek Wong, on behalf of the respondent, submits that, in view of the number of offences, the high value of the stolen property and that equipment for removing anti-theft devices was used in the commission of the offences, an immediate custodial sentence was inevitable.  He cited HKSAR v Serjgavaa Munkh‑Od[2] in support of the submission that the respective starting points of 6‑9 months’ imprisonment were neither wrong in principle nor manifestly excessive.

16.  Mr Wong contended that the judge was entitled to enhance the starting point for the reasons he gave.  He compared the present case with HKSAR v Nguyen Anh Cuong[3]and submitted that the sentence was not manifestly excessive.

17.  Furthermore, the applicant’s family circumstances did not justify any reduction in sentence for this type of offence: see Serjgavaa Munkh‑Od.

Consideration

18.  The judge conducted a meticulous analysis of the individual sentences appropriate.  However the judge went about the process of sentencing for each offence, the Court of Appeal will be examining the overall quantum of sentence, in the light of the various aggravating and mitigating circumstances, to see whether or not the ultimate sentence was a proper one.

19.  I cannot see any reasonable grounds for appeal against sentence in this case.  The applicant was rightly branded by the judge as “a professional thief”, with a history of similar offending going back to 2011, who had embarked on a spree of stealing a large amount of property of high value.  I do not see any argument that the judge was wrong to enhance the sentences for the other aggravating features he identified.  Indeed, the applicant could not have complained if the overall sentence had been higher, particularly in the light of her previous record of similar offences.

20.  I should also add that, given the extent and value of the thefts involved, the number of victims and the means employed to avoid detection, I doubt very much, with respect, that an appellate Court would agree with the judge’s assessment that “all the thefts involved only a small degree of planning and (were) executed with minimum sophistication”[4].  On the contrary, a Court might take the view that this was a premeditated, sophisticated and sustained series of blatant and valuable thefts by a professional thief, in some cases with the assistance of an accomplice.

21.  As for the applicant’s personal problems, such as they are, the repeated decisions of the Court of Appeal have made clear that they cannot normally provide any reason to reduce an otherwise proper sentence for serious offences such as these.  Although I was impressed by the sincerity of the son’s letter, a defendant’s imprisonment is often hardest on his/her immediate family.  Nevertheless, such considerations cannot deflect the courts from imposing proper sentences in respect of serious and repeated offences.

Conclusion

22.  The application is refused.  The applicant is duly advised that she has the right to renew her appeal to the Court of Appeal, but she is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending her appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.