THE QUEEN v. NGUYEN VAN XUYEN

Headnote

Magistracy Appeal - Sentence - Young Person - Vietnamese Defendants.

Magistracy Appeal Nos.
336/90, 352/90 & 468/90

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(Appellate Jurisdiction)

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JUDGMENT

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1. I have taken these three appeals together because they appear to me to raise a common point. There are at the moment in Hong Kong a number of Vietnamese, who, no doubt to certain sections of the community cause problems and are unwelcome visitors. Nevertheless, when in Hong Kong, they are as entitled to the protection of the law as any other person.

2. These 3 men have committed petty crime, either pickpocketing or attempting to pickpocket in rather clumsy circumstances with no weapons used and not operating in gangs. They were sentenced to 9 months imprisonment, but for two a discount of one month was given for their guilty plea. They are young men, under 21, of hitherto good character and by virtue of S.109 (a) of the Criminal Procedure Ordinance a court must not sentence a person to prison, unless the court is of the opinion that there is no other appropriate method of dealing with them.

3. In the case of Vietnamese refugees this poses certain problems, in that they tend to have no money and it may well be that they are not amenable to the services of the probation officers in Hong Kong. Nevertheless, with young persons, it is obligatory for courts, at least to go through an exercise which demonstrates to the public that the sentencing is not a rubber stamp procedure. As far as these three cases are concerned, it appears that the Magistracy is under the impression that the minimum sentence is 9 months imprisonment for pickpocketing.  In my judgment, this view is wrong In principle for persons under 21.  The Court therefore, if it is intending to impose a custodial sentence, because there is no alternative, for petty crime should impose a sentence which is a short, sharp shock. I have looked through some of the decisions of my brother judges on these appeals, which really have no bearing whatsoever upon what is said to be a 'tariff'. There are tariffs for dangerous drug cases and for matters where the public interest outweighs the particular circumstances of the Defendant, such as possession of guns and armed robbery very serious crime.

4. In cases of petty crime, the magistrate is under an obligation to examine the circumstances of each case. In my judgment, there may be instances when no custodial sentence is required. On the other hand, there may well be instances when more severe punishment is required, e.g.  when people operate in gangs, or utilise instruments such as razors or scissors for the purposes of their pickpocketing or are habitual offenders. In a decision of Barnes J. R. v. LEE Kwok-keuun Mag. App. 926 of 1989, he was concerned with a man of 35 years of age with 9 previous convictions, 7 of them for pickpocketing. There the public interest required that he should be sent to a term of imprisonment. The sentence was 12 months imprisonment and yet these 3 youngsters, who have done nothing wrong before, are sentenced to 9 months.

5. In my judgment those sentences are wrong in principle. I allow the appeal. If it is right to impose custodial sentences, the length should effect a short,sharp shock and the sentence should be in the region of 3 months.  In the case of Nguyen Van Cuong, who pleaded guilty at the outset, I reduce his sentence to one of 3 months imprisonment.   With regard to Bui Van May.  I reduce that sentence to 3 months imprisonment.   With regard to Nguyen Van Xuyen, he pleaded not guilty. He therefore is not entitled to a discount, I reduce that sentence to one of 4 months imprisonment.