The Queen v. Romeo R. Guimbal and Another

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1299 OF 1986

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BETWEEN

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Coram : Hon. Garcia J. in Court

Date of hearing : 2nd April 1987

Date of delivery of judgment : 9th April 1987

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J U D G M E N T

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1. The two appellants pleaded guilty to a Joint charge of attempted theft, and was each sentenced to 12 months imprisonment on 25th November 1986.

2. The offence occurred on the 22nd November last year when they were caught attempting to steal from the handbag of an European lady in Tsimshatsui.

3. The appellants now appeal against their sentences. The two appellants who are visitors from the Philippines have clear records and in mitigation the 1st appellant stated to the learned magistrate that his child was going to be baptised in December 1986 (now long past) and the 2nd appellant said that his family was waiting for him in the Philippines and that they wanted him back home for Christmas.

4. In imposing these sentences on the appellants, the learned magistrate took into account that both of them pleaded guilty to the charge but also appeared to consider that such sentences should be of general deterrence since this offence was prevalent in that area.

5. It was submitted on their behalf that the appellants do not belong to any syndicate or that they had used sophisticated means in committing the offence, but the gravamen of their appeals is that the magistrate should not have imposed a general deterrent sentence following R. v. Garthwaite Crim. App. 566/77 where the Chief Justice stated :-

"It is not desirable that the first sentence of imprisonment passed on an offender should be a deterrence sentence in the sense of a general deterrent to deter other persons from behaving as this, appellant did."

It was also submitted that the norm for this type of offence stated by Yang, J .A. in Chan Ki Sai v. R. Crim. App. 236/83 was 9 months' imprisonment and that the magistrate erred in departing from this norm, particularly when the appellants have clear records.

6. In the circumstances, the sentences imposed by the magistrate are excessive and I accordingly allow their appeals and substitute a sentence of 9 months' imprisonment for the 12 months' imprisonment imposed on each of the appellants.

Miss E. Chan for Crown

Mr. A. Wong (D.L.A.) for both appellants