HKSAR v. NGUYEN, THI KIM DUNG

HCMA 1018/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1018 OF 2004

(ON APPEAL FROM KCCC 9553 OF 2004)

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J U D G M E N T

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1.  This is an appeal against sentence.  The hearing in the Magistrate Court and this appeal was in Chinese, but due to the fact that our Vietnamese interpreter in Court do not speak Chinese, and, with the consent of the Appellant and Counsel for the Respondent the appeal was heard in English.

2.  The Appellant was charged with two charges.  The first charge is theft and the second charge is breach of condition of stay in that she had overstayed.

3.  The Appellant had pleaded guilty to the overstaying charge but pleaded not guilty to the theft charge.  After trial, the Appellant was convicted of the theft charge.  The learned Magistrate sentenced the Appellant to 18 months’ imprisonment for the theft charge and 2 months’ imprisonment for the overstaying charge.  The two sentences to be served consecutively.

4.  The facts of the first charge was that on the day of the offence at about 8 pm, the Appellant was seen by a patrolling police officer to be following a couple on the street.  The Appellant, at that time, was with a male person.  Suddenly, the Appellant was seen to stretch her hand to take a mobile telephone from the trousers’ pocket of the man in front of her.  The Appellant was then seen to have immediately passed this mobile telephone to the man she was walking with.  Then they each ran off in separate directions.  The police officer chased the Appellant and managed to stop her after a short distance.  At that stage, the police also discovered that the Appellant was an overstayer.

5.  When the learned Magistrate was considering sentence, he was aware that this was the Appellant’s first conviction and that in mitigation Counsel representing the Appellant also told the Court of the Appellant’s two children.

6.  The learned Magistrate took into account that this type of offence is on the rise and that the aggravating feature in this case is that the Appellant had committed this offence together with another person, and that they had chosen a very busy area of Mongkok, and that is why the Court would have to look at these types of offences very seriously in order to protect members of the public, and the learned Magistrate thus took a higher starting point because of the aggravating features and sentenced the Appellant to 18 months’ imprisonment.

7.  As for the overstaying charge, the Appellant had overstayed for about six months, so the learned Magistrate took a starting point of 3 months and reduced it to 2 months because of the plea, and the learned Magistrate, after considering the case of Tong Fuk-sing, Cr. App 216/99, had considered that these sentences should be served consecutively.  The Appellant, in her appeal against sentence, asked for a chance in order that she may return home to take care of her children and that this was her first offence.  As I have mentioned, the learned Magistrate had already taken there into account when he considered sentence.  I do not see any merit in the grounds of appeal and therefore the appeal is dismissed.