The Queen v. Le Tranh Dieh

CACC000447/1983

[Magistrate should ask defendant if he agrees that he is subject to suspended sentence before it is activated.]

BETWEEN:

Coram: Roberts, C.J.

Date: 5th May, 1983.

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J U D G M E N T

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1. The magistrate had to decide whether or not he accepted the evidence of the only prosecution witness. The appellant chose to remain silent himself and called no witnesses.

2. The magistrate believed P.C. 16523, who said that he saw the appellant, in the early evening in Nathan Road, undoing the clasp of a woman's handbag and putting his hand inside it. The P.C. was close enough to grab hold of the appellant's right hand with his left hand and to prevent him from taking anything from the handbag.

3. The P.C. testified that he informed the appellant that he was a police officer and then tried to handcuff him, which he was only able to do after a struggle with the appellant.

4. The appellant explained that he elected to give no evidence at his trial because he did not understand the Vietnamese interpreter sufficiently well to appreciate that he was being told that he had the choice of saying nothing or of giving evidence.

5. The magistrate has recorded in the court record that the appellant was given this choice and that he chose to say nothing.

6. I am satisfied that the choice was explained to him and that he did understand the court interpreter, because the record shows that he asked various questions of the police officer which show a full understanding of what the witness was saying.

7. The appellant argued that he resisted arrest because he did not know that the person attempting to arrest him was a police officer, since he did not understand Punti and was not shown a warrant card.

8. The appellant did not relate this story to the magistrate. If he had done so, I have no doubt that the magistrate would have come to the same conclusion. Even if he did not understand what the policeman said, he must have known that he was a police officer, and was attempting to arrest him, as soon as he produced the handcuffs, because no private citizen walks about the streets with handcuffs.

9. The magistrate believed the police officer, as he was entitled to do, and I see no ground on which I could interfere with his finding of guilt.

10. The appeals against conviction on the two charges of attempted theft and resisting arrest fail.

11. However, the suspended sentence of four months' imprisonment, which was activated by the magistrate, is quashed, because I am satisfied (and this is not disputed by the Crown) that that suspended sentence, which was imposed in San Po Kong Case 14274 of 1982, related to another accused person and not to the appellant.

12. The record of these proceedings does not show that he was asked by the magistrate whether he agreed that a sentence of four months, suspended for twelve months, had been passed upon him in Case No. 14274.

13. Since there is a danger of misidentification, I suggest that magistrates should take the precaution of asking a defendant whether he agrees that he is subject to a suspended sentence before it is activated.

Representation:

D.J. Little, D.P.C.C. for Respondent Appellant in person.