THE QUEEN v. NGUYEN PHUC AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CIMINAL APPEAL NO. 281 OF 1991

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JUDGMENT

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1. Both appellants were jointly charged in the Magistrate's court with theft, contrary to Section 9 of the Theft Ordinance. It was alleged that they had indulged in a joint pick-pocketing exercise on the 12th January 1991 in Argyle Street, Mongkok.

2. They succeed in stealing a number of items of property from the handbag of a lady in the street. The 1st defendant pleaded not guilty hut was convicted after trial. The 2nd defendant pleaded guilty on the 2nd occasion on which he appeared in court which was the date of the trial. Each of them has previous convictions for offences involving an element of dishonesty. The learned Magistrate sentenced each to imprisonment for 2 years.

3. The 1st appellant is appellant against sentence, complaining 2 years' imprionment is too much and he asks for a reduction. However, in my view, the sentence is neither manifestly excessive nor wrong in principle and his appeal gust be dismissed.

4. The 2nd appellant complains that because he Pleaded guilty he should have been entitled to a lower sentence than that of the 1st appellant. The learned Magistrate in his Statement of Findings said his:

"I did not give the 2nd defendant any discount against Penalty even though he pleaded guilty. The 2nd defendant gave evidence on behalf of the 1st defendant and he told a pack of lies in order to try to have the 1st defendant acquitted of the charge. The 2nd defendant by telling lies in the witness hox showed absolutely no remorse for his conduct and his plea of guilty was nothing more than a ploy to try to have the 1st defendant acquitted and to bring the offence into the category of one defendant committing a single pick pocketing offence. Also the 2nd defendant saved no court time or expense to tile Crow."

5. Whilst the learned Magistrate was entitled to take the view that the 2nd defendant's conduct a lack of remorse, the fact is that lie did plead guilty and plea off guilty is entitled to some discount for the purpose of encouraging pleas of guilty.

6. Accordingly I allow the appeal of the 2nd appellant so as to provide him with soma discount for his plea of guilty. I quash the sentence in his case and substitute therefor a sentence of imprisonment for 21 months.