A A
B B
DCCC 1172/2016
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 1172 OF 2016 E
F F
-------------------------------
G HKSAR G
v
H H
VO TRUONG HAN
I ------------------------------- I
J J
Before: HH Judge A Kwok
K Date: 30 June 2017 K
Present: Mr Sanny Kwong, Solicitor on fiat, for HKSAR
L L
Miss Nisha Mohamed, instructed by Tse Yuen Ting Wong,
M assigned by the Director of Legal Aid, for the defendant M
Offence: Theft (盜竊罪)
N N
O O
---------------------------------------
P
REASONS FOR SENTENCE P
---------------------------------------
Q Q
R
1. After trial, defendant was convicted of a single charge of theft, R
contrary to section 9 of the Theft Ordinance, Cap 210.
S S
T T
U U
V V
-2-
A A
B B
Facts
C C
2. The present case involves a theft case that took place at
D D
Uniqlo, Level 3, APM Millennium City 5, No 418 Kwun Tong Road,
E Kwun Tong, Kowloon, in Hong Kong. According to the facts of the case, E
defendant committed the theft together with three other unknown persons
F F
at about 2020 hours on 26 October 2016.
G G
3. During the course of the theft, this group of people made use
H H
of a rucksack fitted with a tinfoil and placed four stolen lady garment
I jumpers into the rucksack in order to avoid being detected by the security I
alarm system installed in the shop. Defendant together with one of the
J J
wanted persons were responsible for placing the garments into the rucksack
K carried by the wanted person. Afterwards, the one carrying the rucksack K
left the shop without payment and a female security guard (PW1), noticed
L L
the activities of this group of persons inside the shop and she followed the
M wanted person outside the shop. As a result, the wanted person carrying M
the rucksack was able to run away, leaving behind the rucksack.
N N
O 4. When PW1 later picked up the rucksack and went back to the O
shop, she bumped into defendant who was just leaving the shop. After a
P P
brief chase, defendant ran away but was subsequently intercepted by some
Q passersby and security officers in the shopping mall and was later arrested Q
by the police.
R R
S S
T T
U U
V V
-3-
A A
B B
Criminal Record and Background of the Defendant
C C
5. Defendant is a Form 8 holder coming from Vietnam. He
D D
entered Hong Kong in November 2015 and sought asylum. At the time of
E the offence, he was on recognizance under section 36(1) Immigration E
Ordinance, Cap 115, Laws of Hong Kong.
F F
G 6. Defendant had worked as a barber and he had only received a G
Form 1 secondary level in Vietnam. All his family members are in
H H
Vietnam and so he has no family member in Hong Kong.
I I
Mitigation
J J
K 7. In mitigation, counsel for defendant has stressed the fact that K
the value of the stolen property in this case is small, it is only $596 in total,
L L
and she therefore urged the court to distinguish this case from the other
M more serious case involving groups of foreigners coming to Hong Kong M
with the specific aim to commit a crime and steal valuable properties from
N N
the shop.
O O
8. I have inquired with the prosecutor on fiat as to why this case
P P
has to come before the District Court and I was told that the advising
Q counsel from the DoJ was of the view that being a Form 8 holder, what Q
defendant had done in Hong Kong – viz, to commit a crime together with
R R
a group of people - is a serious aggravating factor that the court should take
S into account because in so doing, obviously he was abusing the hospitality S
and the freedom granted to him by the Government of Hong Kong. (See
T T
U U
V V
-4-
A A
B B
HKSAR v Sandagdorj Altankhuyag & Another (unreported), CACC
C 45/2013) C
D D
Sentencing Consideration
E E
9. The case before me is not a simple shop theft committed by a
F F
single defendant. But even if this is a case committed by a group of four
G persons with some levels of planning and acts of premeditations, the fact G
remains that this case involves, as it were, a shop theft of only a total of
H H
about $600 value of property. Even with the aggravation that has in mind
I by the prosecution that defendant had committed the offence in Hong Kong I
while his asylum application was being processed coupled with the fact
J J
that he also committed the offence in conjunction with three other people,
K I do not regard that this case was serious enough to be tried in the District K
Court and the proper venue for trial should be in the Magistrate Court
L L
because the sentence will in no way be more than 2 years.
M M
10. I have referred myself to a Magistracy Appeal case of HKSAR
N N
v Nguyen Van Thang (unreported), HCMA 10/2017, a Chinese judgment
O in which the above aggravating factor was considered and there was a O
reference of altogether 11 cases submitted by the prosecution concerning
P P
shop theft involving Form 8 holders. According to the summary of the
Q court, the average of sentencing starting point is between 4 and 9 months. Q
(See paras 9 & 10 of the Judgment)
R R
S 11. Of course, in each case, the fact is different and the S
background of the defendant is also different, but when I compare this case
T T
to those cases which have been set out in the table as listed in paragraph 9
U U
V V
-5-
A A
B B
of the Judgment, I am of the view that the proper starting point of this case,
C had it been committed by a single defendant, should be 6 months’ C
imprisonment.
D D
E 12. I would further enhance the sentence by 2 months because of E
the fact that this case was committed together with other people and with
F F
elements of planning and premeditation. I would also finally increase the
G sentence by a further 1 month because of the fact that defendant himself is G
a Form 8 holder and he committed this offence while his torture claim is
H H
being processed.
I I
13. As a result, the final sentence that I would impose on this
J J
defendant is one of 9 months’ imprisonment.
K K
L L
M M
N N
( A Kwok )
O
District Judge O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 1172/2016
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 1172 OF 2016 E
F F
-------------------------------
G HKSAR G
v
H H
VO TRUONG HAN
I ------------------------------- I
J J
Before: HH Judge A Kwok
K Date: 30 June 2017 K
Present: Mr Sanny Kwong, Solicitor on fiat, for HKSAR
L L
Miss Nisha Mohamed, instructed by Tse Yuen Ting Wong,
M assigned by the Director of Legal Aid, for the defendant M
Offence: Theft (盜竊罪)
N N
O O
---------------------------------------
P
REASONS FOR SENTENCE P
---------------------------------------
Q Q
R
1. After trial, defendant was convicted of a single charge of theft, R
contrary to section 9 of the Theft Ordinance, Cap 210.
S S
T T
U U
V V
-2-
A A
B B
Facts
C C
2. The present case involves a theft case that took place at
D D
Uniqlo, Level 3, APM Millennium City 5, No 418 Kwun Tong Road,
E Kwun Tong, Kowloon, in Hong Kong. According to the facts of the case, E
defendant committed the theft together with three other unknown persons
F F
at about 2020 hours on 26 October 2016.
G G
3. During the course of the theft, this group of people made use
H H
of a rucksack fitted with a tinfoil and placed four stolen lady garment
I jumpers into the rucksack in order to avoid being detected by the security I
alarm system installed in the shop. Defendant together with one of the
J J
wanted persons were responsible for placing the garments into the rucksack
K carried by the wanted person. Afterwards, the one carrying the rucksack K
left the shop without payment and a female security guard (PW1), noticed
L L
the activities of this group of persons inside the shop and she followed the
M wanted person outside the shop. As a result, the wanted person carrying M
the rucksack was able to run away, leaving behind the rucksack.
N N
O 4. When PW1 later picked up the rucksack and went back to the O
shop, she bumped into defendant who was just leaving the shop. After a
P P
brief chase, defendant ran away but was subsequently intercepted by some
Q passersby and security officers in the shopping mall and was later arrested Q
by the police.
R R
S S
T T
U U
V V
-3-
A A
B B
Criminal Record and Background of the Defendant
C C
5. Defendant is a Form 8 holder coming from Vietnam. He
D D
entered Hong Kong in November 2015 and sought asylum. At the time of
E the offence, he was on recognizance under section 36(1) Immigration E
Ordinance, Cap 115, Laws of Hong Kong.
F F
G 6. Defendant had worked as a barber and he had only received a G
Form 1 secondary level in Vietnam. All his family members are in
H H
Vietnam and so he has no family member in Hong Kong.
I I
Mitigation
J J
K 7. In mitigation, counsel for defendant has stressed the fact that K
the value of the stolen property in this case is small, it is only $596 in total,
L L
and she therefore urged the court to distinguish this case from the other
M more serious case involving groups of foreigners coming to Hong Kong M
with the specific aim to commit a crime and steal valuable properties from
N N
the shop.
O O
8. I have inquired with the prosecutor on fiat as to why this case
P P
has to come before the District Court and I was told that the advising
Q counsel from the DoJ was of the view that being a Form 8 holder, what Q
defendant had done in Hong Kong – viz, to commit a crime together with
R R
a group of people - is a serious aggravating factor that the court should take
S into account because in so doing, obviously he was abusing the hospitality S
and the freedom granted to him by the Government of Hong Kong. (See
T T
U U
V V
-4-
A A
B B
HKSAR v Sandagdorj Altankhuyag & Another (unreported), CACC
C 45/2013) C
D D
Sentencing Consideration
E E
9. The case before me is not a simple shop theft committed by a
F F
single defendant. But even if this is a case committed by a group of four
G persons with some levels of planning and acts of premeditations, the fact G
remains that this case involves, as it were, a shop theft of only a total of
H H
about $600 value of property. Even with the aggravation that has in mind
I by the prosecution that defendant had committed the offence in Hong Kong I
while his asylum application was being processed coupled with the fact
J J
that he also committed the offence in conjunction with three other people,
K I do not regard that this case was serious enough to be tried in the District K
Court and the proper venue for trial should be in the Magistrate Court
L L
because the sentence will in no way be more than 2 years.
M M
10. I have referred myself to a Magistracy Appeal case of HKSAR
N N
v Nguyen Van Thang (unreported), HCMA 10/2017, a Chinese judgment
O in which the above aggravating factor was considered and there was a O
reference of altogether 11 cases submitted by the prosecution concerning
P P
shop theft involving Form 8 holders. According to the summary of the
Q court, the average of sentencing starting point is between 4 and 9 months. Q
(See paras 9 & 10 of the Judgment)
R R
S 11. Of course, in each case, the fact is different and the S
background of the defendant is also different, but when I compare this case
T T
to those cases which have been set out in the table as listed in paragraph 9
U U
V V
-5-
A A
B B
of the Judgment, I am of the view that the proper starting point of this case,
C had it been committed by a single defendant, should be 6 months’ C
imprisonment.
D D
E 12. I would further enhance the sentence by 2 months because of E
the fact that this case was committed together with other people and with
F F
elements of planning and premeditation. I would also finally increase the
G sentence by a further 1 month because of the fact that defendant himself is G
a Form 8 holder and he committed this offence while his torture claim is
H H
being processed.
I I
13. As a result, the final sentence that I would impose on this
J J
defendant is one of 9 months’ imprisonment.
K K
L L
M M
N N
( A Kwok )
O
District Judge O
P P
Q Q
R R
S S
T T
U U
V V