HKSAR v. PHAM NGOC TRINH

HCMA1045/1999 and
HCMA1046/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS.1045 AND 1046 OF 1999

(ON APPEAL FROM TMC 1883 and 2081 OF 1999)

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J U D G M E N T

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MA1045/1999

1. The appellant pleaded guilty before a magistrate to two counts of theft. The offences were committed on 30 May 1999 and the appellant admitted having stolen clothing from the Jusco Department Store and Giordano shop respectively. For each charge he was sentenced to 16 months' imprisonment to run concurrently.

2. In this appeal, the appellant contends that the sentence for the theft charges are manifestly excessive. He submitted that this is his first theft offence although he has a long string of previous convictions. The learned magistrate did not state expressly the starting point for the prison sentence but I assume he must have started with a term of 24 months. By giving him a one-third discount for his plea of guilty he thus arrived at the 16-month term.

3. Counsel for the respondent has quite fairly conceded that the 24 months starting point appears to have been manifestly excessive having regard to the nature of the offences. He suggested that a sentence of between 12 to 15 months' imprisonment as a starting point would have been more appropriate. This I agree and I would therefore allow the appeal against sentence to the extent that the original sentence of 16 months' imprisonment on each charge is substituted by a term of eight months' imprisonment on each charge. As the charges involve different offences, albeit committed on the same day, I would also set aside the concurrent sentence order and order that four months of the sentence of the second count to be concurrent and the balance of four months to be consecutive to the sentence of the first count. In effect therefore, the appellant will be serving 12 months' imprisonment in respect of MA1045/1999.

MA1046/1999

4. The appellant pleaded guilty to one count of theft before the same magistrate. The charge alleged that he had stolen a mobile telephone from a pedestrian and offence was committed while he was on bail in respect of the shoplifting charges. The learned magistrate adopted a starting point of 24 months and reduced it by eight months in view of his plea. He further ordered that half of the 16 months was to be served concurrently with the balance of eight months consecutive to the prison term of the shoplifting charges in MA1045/1999.

5. The court is informed that he has abandoned his appeal against his sentence in respect of MA1046/1999. The appeal is therefore dismissed.

6. There remains the question of whether the part consecutive and part concurrent order should stand. Since I indicated earlier that the sentence of the shoplifting charges were manifestly excessive and I reduced them to reflect the appropriate gravity, the concern of totality principle which the learned magistrate expressed when he imposed the subsequent sentence no longer exists. The present offence was committed while the appellant was on bail. It must be looked upon as an aggravating factor and he can no longer claim that he has not committed any theft offences before. I take the view that the sentence for the pickpocketing charge should run consecutive to the sentence in respect of the shoplifting offences. In effect, therefore, the appellant will be serving 12 months in the shoplifting charges plus 16 months in respect of the subsequent offence in TMC2081/1999. The total term would be 28 months.