THE QUEEN v. NGUYEN VAN-HUY

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO.187 OF 1991

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JUDGMENT

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1. This is an appeal against convictions and sentences on the 8th of January 1991on two charges, one of burglary and one of unlawful possession of stolen goods. The trial magistrate imposed sentences of 15 months' imprisonment in respect of the charge of burglary and 3 months' imprisonment in respect of the possession, to be concurrent.

2. The facts were that the appellant together with three other Vietnamese persons were found in a store on 31st August of last year where they were then searched for possible possession of weapons. In fact a quantity of goods which proved to have been recently stolen were found on them. This included a very substantial quantity coins.In the case of this appellant some 73 coins of various denominations.

3. It is argued here by Mr. Wong, who appears for the appellant and has obviously gone into the law relating to these charges in considerable depth, that there was no evidence that the officers had reasonable grounds for suspecting that the appellant had committed an offence and therefore no grounds for searching him. I am however satisfied that the police officers did have grounds for suspecting these persons and although the magistrate has not specifically gone into this point the argument that there was no such suspicion is not made out.

4. It is also submitted that the evidence was equally consistent with the appellant having received these goods rather than having actually stolen them himself. There was evidence that the owner of the goods had found them missing in the very early hours of 31st August, there is evidence that they were found in the possession of the appellant at about 11 o'clock on that same day. There was no evidence whatever which suggested that in the meantime the goods had been transferred from the actual thief to the appellant. I am satisfied that the magistrate was quite right in coming to the conclusion that the evidence of recent possession was enough to show that the appellant was one of the person's who had actually burgled the shop from what these goods were obtained.

5. I am satisfied the convictions were perfectly safe and satisfactory.

6. As regard sentence, it is submitted by Mr. Wong that the magistrate should have called for reports because the appellant was only 19 this is not an exempted offence and he had no previous convictions. The magistrate saidthat he treated the appellant in the same way as his three companions who were found together with him in the store on 31st August although he did find tnat one of his companions, the 4th defendant, was the ringleader who kept the lion's snare of the spoils. He considered that even so, so far as culpability was concerned, there was nothing much between each of the defendants. Nevertheless even if that was so there is mandatory requirement for a person of the appellant's age that if there is any possibility that something snort of a jail sentence might be appropriate, reports should be called for. That was not done and I think that it is too late to do so now.

7. In consequence the appeal against sentence is allowed and the sentence reduced so as to allow for the immediate release of the appellant.