HKSAR v. BUI BICH PHUONG

HCMA 701/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 701 OF 2000

(On Appeal from Tuen Mun Magistracy Case No. TMCC 1381/2000)

____________

_______________

J U D G M E N T

_______________

1. The Appellant was convicted after trial of 1 charge of theft in the Tuen Mun Magistracy on 6 July 2000. She was sentenced to 12 months imprisonment, to run consecutive to the 8 months imprisonment imposed in another case no. ST 650/2000. The Appellant now appeals against the sentence imposed.

2. The prosecution case is that on 19 March 2000, the Appellant was at the 1/F, Shopping Arcade of Tuen Mun Town Plaza. She took a mobile phone from the backpack which the victim was carrying. This was discovered by the victim who immediately grabbed the Applicant's wrist. Thereupon, the Appellant released the mobile phone she was holding in her hand and a male nearby received the mobile phone. The male and the mobile phone could not be located.

3. The Appellant was 31 years old, single, but has 2 children aged 8 and 4. She used to receive public assistance of $5,000 per month. She has 5 previous convictions, all of theft. The last one was in June 2000 for which she received 8 months imprisonment. Also because of this conviction, the 2 months suspended sentence in an earlier case (TM 199/1999) was activated.

4. The Deputy Magistrate rightly considered that an immediate custodial sentence is called for. The Appellate Court has consistently held that deterrent sentence is called for because pickpocketing is a prevalent offence. It has been pointed out that 12 to 15 months will be an appropriate starting point for a conviction after trial: R. v. Yu Lap-wai MA 866/86; R. v. Vy Van-kien & Anor. MA1162/90. The Court of Appeal has also pointed out that where it is professional pickpocketing and where the offender is acting in concert with others, sentence harsher than the general guidelines is justified: R. v. Nguyen Piran Liuh CA 454/89.

5. In the present case, the Appellant was obviously acting in concert with another man when she committed the offence. She was convicted after trial and she did not have the benefit of a clear record. The 12 months imprisonment imposed is clearly right, and can be considered to be lenient.

6. The Appellant raised 2 matters on appeal. Firstly, she said she had 2 young children to support and look after. That is hardly a mitigating factor. Although it is a difficult task to raise a family on her own, it is not a reason for offending the law. No humanitarian ground or consideration is applicable. Secondly, she asked that the sentence in this case be made to run concurrently with the 8 months imprisonment in ST 650/2000. Although ST 650/2000 also involves a pickpocketing offence, it is a different and distinct occasion from the present case. In addition, it is apparent that the Appellant committed the present offence while on bail for ST 650/2000. In the circumstances, it will be wrong in principle to order the sentences to run concurrently. It is also inappropriate to order the present sentence to be served concurrently with the 2 months suspended sentence activated.

7. For the above reasons, the appeal against sentence is dismissed.