THE QUEEN v. TRAN QUANG TUAN

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H E A D N O T E

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PICKPOCKET RESISTING ARREST - CONSECUTIVE SENTENCES APPROPRIATE - TWO YEARS STARTING POINT TOO HIGH.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 360 OF 1989

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J U D G M E N T

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1. The appellant pleaded guilty to theft and resisting a police officer in the execution of his duty before Mr Mitchell-Heggs, at South Kowloon Magistrates Court, and was sentenced to a total of 18 months imprisonment.

2. The victim was walking in Austin Road, Yaumatei, when she felt someone touch her handbag. She turned and saw the appellant with his hand in her bag holding her wallet. She grabbed the appellant, but he managed to escape, though without the wallet.

3. In the ensuing hue and cry two plainclothes police officers intercepted the appellant and identified themselves. The appellant put up a struggle but was subdued.

4. The appellant has four previous convictions, including three similar.

5. The magistrate took two years as his starting point and gave a discount of six months for the guilty plea. He took the view that the struggle with the police was an aggravating feature of the theft, due to panic and determination to escape, rather than to hurt or challenge the officers. For this reason he imposed a concurrent sentence of three months for resisting the police.

6. This is not the right approach. Resisting arrest in these circumstances is a separate matter and should be punished by a consecutive sentence, the length of which will be determined by the degree of resistance and any injury to the police.   Here a very short consecutive sentence would have been appropriated.

7. The magistrate's approach meant that his starting point was too high. The appellant was acting alone, he did not use a razor blade and nothing was stolen. Having regard to the authorities, some of which were reviewed by Hooper, J. In R v Leung Kim-bor MA 774/88, 12 months would have been a proper sentence after trial.

8. Giving some discount for the plea - there was no other mitigation - but having regard to the second charge, justice will be done if the appeal is allowed and the sentence on the first charge reduced to ten months.