The Queen v. Vu Van Dinh

HCMA000143/1992

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 143 OF 1992

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

BETWEEN

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

Coram: Hon. Penlington, J.A. in Court (sitting as an additional High Court Judge)

Date of hearing: 23 April 1992

Date of delivery of judgment: 23 April 1992

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

J U D G M E N T

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

1. This is an appeal against sentence. The appellant pleaded not guilty to a charge of attempted theft but was convicted after trial.

2. The facts of the case were simple. The was a young woman in Apliu Street on the 28th August 1991 at 6:15 p.m. who was carrying a bag over her shoulder. Although she did not realize what was happening, the appellant unzipped the pocket of the bag and attempted to take out a wallet which was inside. This was observed by police officers and the appellant was arrested.

3. There were no aggravating factors present such as the use of a razor blade or any other form of instrument; there was no suggestion that the appellant was acting in concert with anybody else and the attempted theft took place in the street, not in a train, a race Course or an area where the public are particularly at risk to this type of offence.

4. The appellant is a Vietnamese who has been in Hong Kong for some six years; he is 25 years old and has a clear record.

5. The trial magistrate said that in assessing penalty he took into account the facts of the case, the appellant's clear record and he cited a decision of mine in The Queen v. Vy Van Kien and Another, Magistracy Appeals 1162 and 1179 of 1990. That decision went into the question of level of sentences for pickpocketing and, in particular, held that even a very bad criminal record was not an aggravating factor but was simply that a clear record could not be put forward in mitigation. Having reviewed the cases on sentences for pickpocketing I had come to the conclusion that the starting point after trial for pickpocketing was 12 to 15 months. That could be increased if there were aggravating factors.

6. I would have thought that in this particular case, on its facts a starting point after trial would have been 12 months and that the appellant would be entitled to some reduction on that due to his clear record.

7. Mr. Allan, who appears for him here, has also informed me that the appellant's father is serving a very long sentence of imprisonment in Vietnam and that his mother, who is in ill health, is also in the Whitehead Detention Centre.

8. I am reluctant to interfere with the discretion which the magistrate always has in these matters but I feel that the starting point of 15 months which he took was too high and 12 months would have been appropriate.

9. I allow the appeal to the extent that the sentence of 12 months' imprisonment is reduced to one of 9 months.

Representation:

Mr. William Allan (D.L.A.) for appellant

Paul Leung for Crown