HKSAR v. HOANG THI THU

HCMA 195/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 195 OF 1999

(On appeal from SKCC 3740 of 1998)

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J U D G M E N T

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1. The Appellant was convicted on her own plea of an offence of Theft of a portable phone contrary to s. 9 of the Theft Ordinance, Cap. 210 (being charge 1) and of an offence of Remaining in Hong Kong without authority contrary to s. 38(1)(b) of the Immigration Ordinance, Cap. 115 (being charge 2).

2. She was sentenced to 8 months imprisonment in respect of the first offence and 15 months imprisonment in respect of the second offence, the sentences to be served concurrently.

3. The facts of the 1st charged offence were that the Appellant, unfortunately for her, selected as a victim an off duty woman police officer carrying a rucksack on her back. The Appellant unzipped the rucksack and removed a portable phone from it. Two other off duty officers, friends of the first female officer and walking behind the Appellant, saw this. The Appellant was stopped and arrested by all three officers.

4. In the course of subsequent enquiries the Appellant admitted she had arrived in Hong Kong underneath a container lorry some 2 weeks earlier.

5. The magistrate in dealing with sentence considered the mitigation advanced by the Appellant including her family circumstances and background.

6. He took in respect of the theft offence a starting point of 12 months imprisonment and reduced that to 8 months imprisonment to reflect the Appellant's guilty plea. That guilty plea was quite rightly regarded by the learned magistrate as the only significant factor in mitigation.

7. In respect of the unauthorised remaining in Hong Kong offence the magistrate correctly came to a sentence of 15 months after plea. That was so, even though the Appellant was Vietnamese, on the authorities of R. v. Nguyen Thi Tham M.A. 747/1996 and R. v. Pahm Dinh Ouyet M.A. 900/1996.

8. Before me today the Appellant repeated the mitigation she urged upon the magistrate. Additionally she referred to a letter written to her by a relative in Vietnam telling her that one of her children, aged a few months, had died.

9. When asked whether she wished to seek an adjournment she requested that these proceedings continue as getting documentation establishing the death of her child from Vietnam would take too long.

10. Accordingly there is nothing before me establishing the death of her child other than the Appellant's reference to the letter from her relative. But even if there were before me such evidence the learned magistrate in this case ordered both sentences, perhaps over generously, to be served wholly concurrently. Whatever may be the truth of the unfortunate news the Appellant has received from Vietnam, it seems to me that even if that information were true it would not establish that the sentences imposed, in their totality, were too severe.

11. Accordingly the Appellant's appeal on the basis of the sentences being too severe is dismissed.