R. v. Nguyen Quang Tuan

HCMA000725/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 725 OF 1996

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

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

Coram : Hon Stock, J. in Court

Date of hearing : 15 August 1996

Date of judgment : 15 August 1996

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

J U D G M E N T

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

1. This is an appeal against sentence. The appellant is a Vietnamese male. Prior to April 1996, he was a detainee at the Whitehead Detention Centre. He escaped from the Centre and that is the basis of one of the charges to which he pleaded guilty.

2. On 21st May 1996, he was seen and stopped at an MTR station, and was in possession of a Vietnamese Refugee Card. It was a forgery. That was the second offence.

3. He pleaded guilty to both charges, namely, escaping from a detention centre, and being in possession of a forged Vietnamese Refugee Card. For the possession of a forged card offence, he was sentenced to nine months' imprisonment and for the escape offence, to three months' imprisonment. Those sentences were ordered to run consecutively. He is a man who has a prior clear record, and is aged 20 years.

4. The magistrate has referred in her Reasons for Sentence to two cases, one of which is the case of Nguyen Duc Quang, Mag.App.No.885 of 1993 which is a judgment by the Chief Justice in which he said that the starting point after trial for an offence of possession of an altered Refugee Card should be 15 months' imprisonment, and for the escape offences, should be six months' imprisonment. I note in passing that six months is the maximum term for escape offences permitted by law. So, the magistrate has not erred in the individual sentences passed.

5. In the judgment in the Nguyen case, reference is made to a comment in the case of Vu Van Do, Mag.App.No.1127 of 1991 that it is apparently the practice amongst magistrates to make sentences for escape offences concurrent if there is another offence for which they are charged.

6. In Nguyen Duc Quang, the Chief Justice distinguished the Nguyen case from the Vu Van Do case and said that in the case before him, the two offences were eight months' apart and that the magistrate was therefore perfectly entitled to regard them entirely different and distinct offences.

7. In this particular case, the two offences were about a month apart. The magistrate cannot be criticised for the view she took that the offences were distinct and separate and the totality of 12 months does not result in a sentence which in my judgment offends the sensible application of the totality principle.

8. Accordingly, this appeal is dismissed.

Representation:

Mr F. Veltro, Senior Crown Counsel, for Crown

Appellant, Nguyen Quang Tuan, in person