HKSAR v. DINH KHAC NHAT

HCMA 251/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 251 OF 2001

(ON APPEAL FROM ESCC 484/2001)

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J U D G M E N T

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1. The Appellant pleaded guilty to one count of attempted theft contrary to Section 9 of the Theft Ordinance Chapter 210 and Section 159G of the Crimes Ordinance Chapter 200.

2. He was charged that on 10 February 2001 in Jardines's Bazaar Causeway Bay, he did attempt to steal a comb and mirror, a cleaning cloth for glasses, a bottle of antiseptic and one packet of oil-clear paper which were properties in the victim's handbag or rather rucksack at the time.

3. The Appellant had 13 previous convictions and five were similar which were theft convictions. It is clear that on 13 February 2001 the Appellant had been convicted of a similar offence of theft and sentenced to 10 months' imprisonment. And that offence was committed on 6 February and the present case before me was committed on 10 February and he was sentenced by the learned magistrate to 12 months' imprisonment. The learned magistrate ordered that these 12 months be served consecutively to the 10 months he was serving at the time.

4. The learned magistrate correctly took a starting point of 18 months because the Appellant was a persistent offender and the offence was a very prevalent one in that area. So I cannot say that the starting point was wrong but by imposing this sentence to run consecutively to the sentence that the Appellant was serving, the learned magistrate had failed to consider the totality principle. It is clear from the authorities that when sentencing a defendant who is serving a term of imprisonment, a sentencing judge should always consider that principle.

5. Therefore, I will allow the appeal. I will make the sentence of 12 months' imprisonment 6 months to be concurrent to the 10 months he is serving and 6 months to be consecutive to the 10 months he is serving.