R. v. Ronnie Alfonso Talaw

HCMA000910/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 910 OF 1996

____________

____________

Coram: The Hon. Mr. Justice Keith in Court

Date of Hearing: 25 October 1996

Date of Delivery of Judgment: 25 October 1996

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

J U D G M E N T

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

1. On 28th June 1996 at Western Magistrates' Court, the Appellant pleaded guilty to two charges. The first was attempting to steal, and the second was being in Hong Kong in breach of a deportation order. He was sentenced to 12 months' imprisonment on the first charge, and to 24 months' imprisonment on the second charge. Those sentences were to be served consecutively, making 3 years' imprisonment in all. He now appeals against his sentence on the second charge.

2. The brief facts, which the Appellant admitted, were that an order for his deportation from Hong Kong for life had been made in August 1985. He had been deported to the Philippines the following month. He had returned to Hong Kong subsequently on at least two occasions, and had been deported back to the Philippines in June 1989 and April 1995. By June 1996, he had returned again to Hong Kong, and on the day of his arrest he was seen putting his hand into the handbag of a woman in Central MTR Station.

3. The Appellant is 33 years old, and comes from the Philippines. He has a number of previous convictions in Hong Kong, including five for theft or attempted theft and three for being in Hong Kong in breach of a deportation order. He has a number of aliases, and therefore returned to Hong Kong under assumed names. On the last occasion when he had to be sentenced at the same time for an offence of theft and an offence of being in Hong Kong in breach of a deportation order, he was sentenced to 12 months' imprisonment on the charge of theft and 12 months' imprisonment consecutive on the charge of being in breach of the deportation order.

4. The sentencing guidelines for pickpocketing offences are set out in Vy Van Kien [1991] 1 HKLR 422. On the application of those guidelines, giving due weight to the Appellant's plea of guilty, the sentence of 12 months' imprisonment on the first charge cannot be faulted. Indeed, there is no appeal against that sentence. The maximum penalty on summary conviction for the offence of being in Hong Kong in breach of a deportation order is 3 years' imprisonment. In sentencing the Appellant to 24 months' imprisonment on this charge, the magistrate was sentencing the Appellant to the maximum term less the usual one-third discount for his plea of guilty.

5. In my view, the Appellant's entry into Hong Kong yet again when he knew that he was subject to a life-time prohibition on his coming to Hong Kong justified a deterrent sentence. This was the sort of case which Litton, J.A. (as he then was) had in mind in Ng Fung King Cinderella [1993] 2 HKCLR 219 when he referred at p.221 to the case

"where the court has before it a persistent offender and in sentencing him the court has concluded that a deterrent sentence would have to be imposed, the application of the tariff having clearly failed on previous occasions to deter, in relation to the same offender."

This was clearly the approach which the magistrate adopted. On the other hand, care should be taken to ensure that a man is not sentenced on his record. His record is relevant only to determine the degree of his criminality on the offence for which he falls to be sentenced.

6. Although the magistrate was entitled to sentence the Appellant on a deterrent basis, I fear that in sentencing the Appellant to 24 months' imprisonment on the second charge, the magistrate may have been sentencing the Appellant too much on his record. In my view, the appropriate sentence, balancing the need to deter the Appellant in the future against the undesirability of sentencing him for what he has done in the past, was one of 15 months' imprisonment. The magistrate was entitled to conclude that the offences, being separate and distinct, justified consecutive sentences, and in my judgment 27 months' imprisonment in all was appropriate for what the Appellant did. Accordingly, the sentence on the second charge will be reduced from 24 months' imprisonment to 15 months' imprisonment, and to that extent this appeal must be allowed.

Representation:

Mr. Christopher Coughlan, instructed by the Director of Legal Aid, for the Appellant.

Mr. Frank Veltro, Senior Crown Counsel, for the Crown.