The Queen v. Nguyen Van Nghiep

HCMA000605/1991

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 605 OF 1991

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BETWEEN

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Coram: Hon. Barnes, J. in Court

Date of Hearing: 8 August 1991

Date of Delivery of Judgment: 8 August 1991

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JUDGMENT

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1. The appellant pleaded guilty in the Magistrate's Court to a charge of burglary contrary to Section 11(1)(b) of the Theft Ordinance. He committed the offence jointly with another. He pleaded not guilty but was found guilty after trial.

2. The offence involved the breaking and entering of a restaurant which was closed for Ching Ming Festival day. They stole a television set belonging to the restaurant. The other defendant nad a record involving a previous conviction for theft and a conviction for burglary committed at night in company on commercial premises where the female occupant was asleep. This appellant on the other hand at the time of the commission of this offence had no previous convictions, although he had, between the commission of the offence and his appearance in court in respect of this offence, been convicted of the offence of possession of dangerous drugs for which he was fined $3,000.

3. The learned magistrate sentenced this appellant and the other defendant to imprisonment for 12 months. I think that the sentence in this appellant's case in view of his previous good conduct should not have been an immediate custodial sentence. I will allow his appeal to this extent. The sentence of 12 months' imprisonment will be quashed. I substitute therefor a sentence of imprisonment for 9 months and order that sentence be suspended for a period of 18 months from today. I have reduced the sentence to 9 months to take account of the period the appellant has already spent in custody.

Representation:

Ms. Maria, C.C. for Crown

Appellant : NGUYEN VAN NGHIEP in person