HKSAR v. NGUYEN THU THANH

HCMA 643/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL NO. 643 OF 1999

(ON APPEAL FROM SKCC 1211 OF 1999)

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J U D G M E N T

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1. This is an appeal against the sentences imposed upon the Appellant at the South Kowloon Magistracy on 9th June 1999 for the offences of theft and misleading a police officer to which offences (committed in March 1999) she had pleaded guilty. At the date upon which the sentences were imposed the Appellant was serving a sentence of 4 months imprisonment imposed on 12th May 1999 in respect of an offence concerning dangerous drugs.

2. The 2 offences, the sentences for which which are the subject of the present appeal, were committed whilst she was on bail in respect of the dangerous drugs offence.

3. In respect of the offence of theft the Learned Magistrate imposed a sentence of 12 months imprisonment and ordered that one month of that sentence be served concurrently with the sentence of 4 months which the Appellant was then serving.

4. In respect of the offence of misleading a police officer the Learned Magistrate imposed a sentence of 2 months imprisonment and ordered that one month of that sentence should be served concurrently with the 12 month term imposed for the theft and that one month should be served consecutive to the 4 month term that the Appellant was then serving.

5. The Learned Magistrate then concluded her reasons for sentence by saying -

"That makes a total sentence of 13 months for the two charges."

6. I must confess to having had some difficulty in following that conclusion or precisely what it was that the Learned Magistrate intended. If she intended that the Appellant should serve a total of 13 months imprisonment consecutive to the term of 4 months which she was then serving that was not the sentence which was in fact imposed. One month of the 12 month term was to be served concurrently with the 4 month term, 11 months to be served consecutive to it. One month of the 2 month term was to be served concurrently with the 12 month term, one month to be served consecutive to the 4 month term. That is a total of 12 months imprisonment to be served consecutive to the 4 month term - and not 13 months.

7. With respect either result could have been more satisfactorily achieved by making the 12 month term and the 2 month term concurrent (or in part concurrent) as between themselves but consecutive to the 4 month term, the concurrence being justified applying the principle of totality.

8. That matter apart, which I have asked the Secretary for Justice to bring to the attention of the Commissioner of Correctional services, the Appellant said to me this morning, somewhat disarmingly, that she didn't consider her sentence to be excessive. Indeed, she added, that it was quite appropriate.

9. Her sole concern was that her 2 year old child was, in effect, serving the sentence with her to his obvious disadvantage and the Appellant was asking this court, as an act of mercy, to shorten her sentence so that both she and the child could be released earlier.

10. This is not a case where a defendant has given birth whilst in prison. Indeed in this case the child in question was the subject matter of the offence of misleading a police officer.

11. Whilst I have some sympathy with both the Appellant and her child in their present predicament, the well being of that child should have been at the forefront of the Appellant's mind before she committed the offences which have led to her prolonged incarceration.

12. For these reasons - and subject to all that I have said earlier about the computation of the sentences being appealed against - this appeal is dismissed.