HKSAR v. NGUYEN QUYET TAM

HCMA683/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.683 OF 2002

(ON APPEAL FROM TMCC 1578 OF 2002)

------------------------

------------------------

-----------------------

J U D G M E N T

-----------------------

1. The appellant in this case pleaded guilty before a magistrate at Tuen Mun to an offence of attempted theft, and he was sentenced to nine months' imprisonment. The sentence was ordered to be served consecutively to a term of 23 months which he was already serving.

2. He appeals against sentence saying that it was too severe and, in addition today, he urges upon me that his personal circumstances warrant a reduction in sentence.

3. The facts of the offence were straightforward. He was caught with his hand in a lady's handbag when trying to steal from it. She realised what he was about and raised the alarm. He managed to make good his escape but not before his intended victim had taken hold of his rucksack. He fled the scene, leaving his own bag behind. The letters in the bag led the police to him, and he was identified on an identification parade.

4. The appellant had been to court on five occasions before his appearance in Tuen Mun, and the last two resulted in the sentence of 23 months he was serving when he appeared before the learned magistrate in this case. On 13 May 2002, for an offence of escaping from legal custody he had been sentenced to six months' imprisonment. He next appeared in court, on 24 May 2002, facing five separate offences when he was sentenced as follows :

(a) Possession of a forged identity card -- 15 months' imprisonment.

(b) Unlawfully remaining in Hong Kong -- 15 months' imprisonment, concurrent.

(c) Resisting a police officer -- 2 months' imprisonment, consecutive.

(d) Possession of a false instrument -- 15 months' imprisonment, concurrent.

(e) Breach of a deportation order -- 15 months' imprisonment, concurrent.

That total of 17 months was to be served consecutively to the six months ordered on 13 May, and it was these 23 months to which the present sentence was added.

5. There can be nothing wrong in itself with a sentence of nine months following a plea to attempted theft where the offence is pick-pocketing. In the case of R.v. Vy Van Kien and Pham Van Hoa [1991] 1 HKLR 422, Penlington JA suggested a starting point of 12 to 15 months' imprisonment where there were no aggravating features such as the use of a weapon, theft in a place where the public is at risk or where the offender acts in concert with others. He also commented that the fact that an offence was an attempt rather than a completed offence was irrelevant to sentence.

6. In the present case, the magistrate took a starting point of 15 months and reduced that to 10 to recognise the guilty plea, and reduced it by further one month because it was an attempt. The starting point and reduction for plea are both entirely proper and, indeed, the appellant may have been fortunate in having a further one month deducted from the sentence because it was an attempt.

7. He asks today that part of the nine months be ordered to run concurrently to the existing 23 months, or that it be reduced. He complains effectively that the court below did not take totality into account.

8. The totality principle is a well recognised part of sentencing, it is designed to help the court arrive at a sentence where more than one offence is involved. It

"enables a court to mitigate what strict justice would indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by reducing the total effect."

This can be seen in R. v. Rossi, 142 LSJS 451. The court should stand back and consider whether :

"The total sentence is so disproportionate to the overall offending as to be unduly crushing."

(See R. v. Major, Brett [1998] 108 A Crim R 66). The principle is as relevant if there are more than one offence to be sentenced on one day as it is when an accused who is already serving a sentence of imprisonment, is sentenced again, as here. (See R. v. Ng Chun Keung [1993] 2 HKC 171)

9. That an experienced magistrate would have this principle firmly in his mind must be without question. Indeed, the transcript records that the appellant's solicitor referred to totality and the magistrate himself noted it in his Statement of Findings.

10. The court referred carefully to the previous record and clearly it was well aware of the overall effect of the sentence. The magistrate made no express reduction for totality but did he not have to. It is very much in his discretion whether having considered totality and having stood back from the overall sentence he considers a reduction necessary.

11. The defendant also asks me to look at his personal circumstances, but he tells me nothing which was not before the court below, and there is nothing in what he says which amounts to exceptional humanitarian considerations warranting a reduction in sentence.

12. The total sentence of 32 months relates to seven offences committed, so far as I can see, on three separate occasions. I am unable to say that this sentence of nine months is manifestly excessive or wrong in principle, and the appeal is dismissed.