The Queen v. Le Thanh Dien

HCMA000072/1992

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NOS. 18 & 72 OF 1992

_____________

BETWEEN

____________

Coram: The Hon. Mr. Justice Sears in Court

Date of Hearing: 3 March 1992

Date of Delivery of Judgment: 3 March 1992

_______________

J U D G M E N T

_______________

1. In July of 1990, he was arrested for Attempted Theft (pickpocketing). He was given bail, absconded and presumably stayed in Hong Kong.

2. He was arrested then in 1st November 1991, pickpocketing outside the Peninsula Hotel. He admitted that offence and he also told the police that he had stolen something from someone earlier. He, came before the South Kowloon Magistrate's Court and was sentenced to 12 months and 9 months consecutively. He has a very long history of pickpocketing, but it has been said time and again one must be sentenced for the offence. Having regard to the totality here, I consider the correct sentence is one of 18 months split up as to 12 months for the attempted theft, and 6 months for the theft, consecutive. So in so far as that appeal is concerned, I would allow it and reduce the sentence from 21 months to 18 months.

3. He then came before the Eastern Magistrate's Court, before Mr. Wright, on a charge of pickpocketing committed in July 1990, and the Magistrate was told by the solicitor that he was now serving a sentence of imprisonment. For reasons which I confess I cannot follow the magistrate said as this was a separate offence, he should now be sentenced to 2 years imprisonment to run consecutively. So he had to wait until the expiry of the 21 months imprisonment, before the sentence of 2 years would come into force. That in my judgment is wrong in principle; the offences in December 1991 were not, even previous convictions; he should have been sentenced for the offence which was before the Magistrate. The Magistrate very properly went through the various authorities. There is of course a tariff but one must look at the overall position. It would be quite wrong to sentence this man to a period of imprisonment consecutive to the other offences.

4. The sentence which should have been passed, in my judgment, was one of 15 months imprisonment. That sentence will date from 2nd January 1992, so the overall position is that he will receive 15 months imprisonment from 2nd January and his other offences which I have reduced to 18 months from the 30th December, they will all be served concurrently.

Representation:

Mr. Josiah Lee C.C. for the Crown.

Mr. J. Hemmings of Messrs. Paul Kwong & Co. for Appellant.