THE QUEEN v. TRAN VAN THAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 402 OF 1991

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BETWEEN

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JUDGMENT

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1. The appellant was the 2nd of 2 defendants charged in the Magistrate's Court with burglary. The particulars of the offence were that on the 14th of March 1991 at Yuen Long having entered the store as trespassers they stole therein a quantity of cigarettes valued at $5000 the property of the shop owner. The burglary was committed late at night and the only occupant of the premises at the time was a female, who was sleeping on the upper of the 2 floors of the premises.

2. The culprits were apprehended when the taxi, in which they were leaving the scene, was stopped for some reason by police officers, and the quantity of cigarettes discovered and the commission of this offence revealed.

3. The other defendant was aged 27 at the time, and he was sentenced to imprisonment for 15 months. This appellant was aged 17 and was sentenced to imprisonment fox 12 months. Both of them had pleaded guilty, and both are Vietnamese citizens. His residential status here is not entirely clear.

4. This appellant has previous conviction for theft, for which he was sentenced to imprisonment for 12 months. The learned magistrate came to the conclusion that a suspended sentence was not appropriate because the offence was one of burglary of premises where the occupier was a female, and that as the property taken was a large quantity of cigarettes he was of the view that the offence was motivated by great considerations of commercial gain. He was also influenced by the fact that the appellant had already served a period. of imprisonment.

5. I thought on the first day of hearing that this young man having. received a sentence of imprisonment for his first offence had not been given the real chance that the first offender should receive. I, therefore, remanded the appellant until today for the purpose a obtaining a probation officer's report. That report reveals that the appellant is presently living in an open camp at Tuen stun, in circumstances rendering it rather impractical for probation to be a sensible means of dealing with him. The probation officer's report upon him is favourable, and I think that it is desirable for his reform that he continue living and working at that camp.

6. Accordingly, I think that the proper method of dealing with him is by way of a suspended sentence. I therefore, allow the appeal to the extent dint the appellant's sentence will be suspended, and it will be suspended for a period of 13 months from the date the sentence was imposed.