THE QUEEN v. DO VIET QUY

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 623 OF 1988

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BETWEEN

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JUDGMENT

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1. The Appellant DO Viet Quy (D2) was charged with attempted theft. He with another person attempted to steal from a lady's handbag and the attempt was unsuccessful because of the intervention of some police officers who were nearby and witnessed the attempt to pickpocket the lady's handbag.

2. He was found guilty and the magistrate sentenced him to imprisonment for 18 months. A the time he had a record showing that he had been convicted on five previous occasions and had altogether some seven convictions for theft and one of attempted theft.

3. He now appeals against sentence and as part of his grounds of appeal alleges that the magistrate took account of his previous record and as a result increased the sentence because of that factor.

4. In his reasons for sentence, the magistrate does mention the Appellant's previous record but he does not say that that affected him so as to increase would otherwise have imposed.

5. On sentence a convicted person's record is a relevant matter because a person with a record is not entitled to the same discount as a person with a clear record. There comes a time when the record of an offender is such that he is no longer entitled to any discount at all. In this case I do not think that the magistrate did increase the sentence because of that factor.

6. Miss Pinto who appears for the Appellant today has put me a number of decisions on appeal in respect of cases of theft and in particular cases of pickpocketing. Those cases are CHAN Kisai v. The Queen (Cr., App 236 of 1986),The Queen v. HAU Tai-wai (MA769 of 1987), The Queen v. YU Lapwai ([1987] HKLR 46) and CHAN Chi-man v. The Queen ([1918] HKLR 703). It is clear from those cases that the tariff range for this type of offence is of imprisonment from 9 to 15 months. She submits that this sentence of 18 months is therefore beyond that range and there was no justification for it. Mr. Bruce for the Respondent agrees that the sentence is on the high sight and over the range.

7. I will, therefore, allow the appeal and quash the sentence of imprisonment for 18 months and substitute therefore a sentence of imprisonment for 15 months.