HKSAR v. Nguyen Lam Tuyen

HCMA 576/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 576 OF 2004

(ON APPEAL FROM STCC 283/2004)

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Before: Hon Beeson J in Court

Date of Hearing: 26 August 2004

Date of Judgment: 26 August 2004

Date of Reasons for Judgment: 16 September 2004

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R E A S O N S   F O R   J U D G M E N T

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1.The Appellant pleaded guilty in the Magistracy to two counts of Theft and was sentenced to 16 months’ imprisonment on each count.  14 months of the sentence on the second charge was ordered to run concurrently with and 2 months consecutively to, the sentence on the first charge, making a total of 18 months’ imprisonment.  The Appellant appealed against sentence.

2.Before sentencing, the Magistrate obtained a DATC Report and a Background Report.  The Appellant was represented at the hearing in the Magistracy and also on appeal.

Facts

3.The facts admitted by the Appellant were that police noticed the Appellant and two women acting furtively in a shopping centre.  The women went into a shop and the Appellant waited outside.  The women were seen stealing trousers in the shop using an overcoat to cover their activities.  They left the shop and police intercepted the Appellant and the two women.  All of them struggled and managed to flee, but were subdued, eventually, by the police party.  Under caution, the Appellant admitted that he was waiting for the women, but said he did not know they were stealing inside the shop.  The paper bag that he was carrying was searched; inside police found two mobile phones.

4.Police checked the call records of the telephones and succeeded in locating the owners.  The arrest occurred at 1637 hours.  The owner of the telephone involved in Charge 1, confirmed that she had used her telephone last at 1530 hours on that day.  She placed her telephone in her left overcoat pocket, but at 1600 hours found it was missing.  The owner of the telephone, the subject of Charge 2, confirmed that she used the telephone last at 1600 hours.  She then placed the telephone in her right overcoat pocket and at 1630 hours, she found it was missing.

5.The Magistrate having noted the facts treated the case as a pickpocketing and indeed that was the way it was treated by the Duty Lawyer appearing for the Appellant.

Grounds of Appeal

6.The grounds of appeal against sentence were, first, that the Magistrate erred in law in that she gave insufficient reasons for treating the two convictions as thefts by pickpocketing, because the charges specified a location different from those where the two victims still had their property.  Alternatively, the Magistrate had failed to note that the prosecution alleged an appropriation outside the SHEro Shop, Shatin New Town Plaza, Phase 3 and it was a possibility that this was a theft by finding at that location.  The second ground was that if these were thefts by pickpocketing, the sentence was manifestly excessive and wrong in principle, as the Magistrate had proceeded with the wrong starting point, not that laid down in R v Vy Van Kien, [1991] HKLR 422.

7.On Ground 1, given the circumstances described, it was open to the Magistrate to infer the thefts were by pickpocketing.  As the Appellant pleaded guilty to both charges and agreed the facts, there was no requirement that the Magistrate in her Reasons for Sentence make specific reference to the question of whether this was pickpocketing.  Certainly, the mitigation was advanced on the basis that these were pickpocketing offences.  Ground 1 has no substance and is dismissed.

8.The Magistrate had taken VY Van Kien into account, when she paraphrased a finding from that judgment in her Statement of Findings:-

“Starting point for pickpocketing offences in places where the public is particularly vulnerable, such as public transport or crowded places, is 12 to 15 months after trial.”

9.Clearly New Town Plaza in Shatin on a Saturday afternoon would be a crowded public place.  The Magistrate regarded the Appellant as a persistent offender and considered that in line with the authorities, in particular R v Simon Tam, MA 489 & 490 of 1996, the court was entitled to take a higher starting point for offences where the offender had a history of multiple similar offences.  The Appellant had a record, starting in 1982, which at the date of the hearing before the Magistrate, listed 19 court appearances, a number of which were for multiple offences.  Almost all the offences were attempted theft or thefts (16), with 6 pickpocketing offences included.  There was also recorded a number of drug offences.

10.The Magistrate referred to HKSAR v Huynh Van Dung, HCMA 270/2001, which was a similar case, an attempted pickpocketing where the drug addict offender had 15 previous convictions, 12 being for theft or attempted theft and including 5 picketpocketing offences.  On appeal a starting point of two years’ imprisonment was upheld.  In the instant case, the Appellant had a worse record.

11.The Magistrate was aware that the Appellant was a drug addict who had been to DATC twice.  She obtained a DATC report before sentencing.  Although the Appellant was deemed suitable for DATC, the Magistrate knew that section 4(1) DATC Ordinance, Cap 244, requires that before sending a person to DATC, the Court must be satisfied it is in the interests of a Defendant and society that he should be sent there instead of to a prison.

12.In the Magistrate’s view, the Appellant being a persistent offender, it was in the public interest that a deterrent sentence be imposed.  The Appellant had not taken advantage of two remands to DATC in the past and the Magistrate knew that even if a custodial sentence was imposed, the Commissioner of Correctional Services could, if necessary, transfer him to DATC while he was serving a sentence.

13.The Magistrate took 24 months as a starting point and deducted one-third for the plea of guilty, which gave a sentence of 16 months on each charge.  She noted these were separate incidents and that the sentences should be consecutive, but she took totality into account by ordering that 14 months of the sentence on Charge 2 run concurrently with and 2 months consecutively to, the sentence on Charge 1.  There is nothing excessive, or wrong in principle, with the Magistrate’s sentence.  Accordingly, the appeal is dismissed.

Miss Lily Ho, SGC, of Department of Justice, for Respondent

Mr David Boyton, instructed by DLA, for Appellant