HKSAR v. HUYNH VAN DUNG

HCMA 270/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 270 OF 2001

(ON APPEAL FROM ESCC 4732/2000)

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JUDGMENT

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1. The appellant, Huynh Van Dung, pleaded guilty on the day of his trial, 30 November 2000, to an offence of attempted theft in Russell Street in Causeway Bay. He had been seen by members of a police anti-pickpocketing team loitering in that street, looking at the handbags of passers-by. The police officers followed him as he walked up behind two young women, one of whom was carrying a knapsack on her back. He opened the zip pocket on the knapsack and inserted his hand. However, the young woman noticed this and turned around. The appellant immediately removed his hand without taking anything out of the knapsack and walked on past the girl. The police officers intercepted and arrested him.

2. The appellant comes from Vietnam. He's 28 years old. He's married, he has a young child. He has 15 previous convictions, 12 of which are for theft or attempted theft. He has been convicted of pickpocketing offences on five occasions in the past five years, and has been sentenced to terms of imprisonment ranging from 9 to 15 months.

3. The magistrate, Mr Colin McIntosh, was told that the appellant was a drug addict who stole to feed his habit. He was also told that he had a determination to break his addiction. The magistrate sentenced him to serve 18 months in prison.

4. In his reasons for sentence the magistrate said this:

"The appellant was not to be re-sentenced for his previous offences but his persistence in offending in this matter aggravated the present offence. The fact that this was an incomplete offence did not in any way diminish its seriousness. In all the circumstances, a starting point for sentence was at least the limit of the magistracy sentencing jurisdiction. I took the maximum available term of two years as being appropriate, bearing in mind that the prosecution has chosen not to take the case to the District Court."

5. Before me, it has been argued that the magistrate was wrong to take that approach. As I said in the course of discussion with counsel, Mr Alex Ng, who appears for the appellant, that argument does not appear to be correct because there is clear authority to the contrary. I refer in particular to three cases, which are but examples of this.

6. In R v Ng Fung-king [1993] 2 HKCLR 219, Litton JA said, at page 221:

"One such case would, I suggest, be where the court has before it a persistent offender and in sentencing him the court has concluded that a deterrent sentence would have to be imposed, the implication of the tariff having clearly failed on previous occasions to deter in relation to the same offender."

In that case, it is acknowledged that Litton JA was referring to an offence for which there was an established sentencing tariff.

7. However, in 1996, in an unreported case, R v Simon Tam, Magistracy Appeals 489 and 490 of 1996, Patrick Chan J said:

"There are clear authorities to the effect that in a case where a person had a history of multiple offences of a similar nature in the past, the court is entitled to take a higher starting point. That is not to say that a defendant is to be punished twice. It is simply that where the defendant has been punished for the past offences, he clearly has not learned any lesson and a greater deterrent sentence may be necessary to be effective."

8. And this morning, Mr Madigan, counsel for the respondent, drew my attention to HKSAR v Chan Pui-chi [1999] 2 HKLR 830, where Stuart-Moore, VP, said, at page 833:

"Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court but not for previous offences for which he has already served a penalty, the constant repetition of this applicant's trafficking in dangerous drugs has itself increased the gravity of these offences, at least so far as sentence is concerned. The sentences he had received in the past have proved to be no deterrent at all and prevention further repetition was demonstrably in the public interest."

He went on to say at page 834:

"The starting point will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand and the court's duty to protect the public on the other."

9. In this case, as the appellant is a persistent offender, the magistrate was perfectly correct in taking the approach that he did and his starting point of 2 years' imprisonment was the correct one.

10. The magistrate went on to say:

"The appellant was entitled to a discount to reflect his plea of guilty, but bearing in mind that the plea had only been entered on trial day, he was not entitled to the usual one-third. I reduce the term by a quarter, to 18 months."

Mr Ng argues that the appellant was entitled to a one-third discount, which is the accepted discount for those who admit their guilt.

11. There is ample authority that where there is no timely plea, a court is entitled to give less than a one-third discount. However, Mr Madigan tells me that he does not seek to uphold the magistrate's approach to this matter, as it would appear that on the previous occasion the case had to be adjourned for reasons that were not of the appellant's making. I therefore accept that he is entitled to a full one-third discount and vary the sentence from 18 months' imprisonment to one of 16 months' imprisonment.

12. The appeal is allowed to that extent.