HKSAR v. PHAM THI TAM

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1062 OF 1998

(On Appeal from NKC 6325 of 1998)

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J U D G M E N T

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1. The Appellant was charged on 5th September 1998 at Argyle Street, junction of Sai Yee Street, Kowloon dishonestly received one full set of mobile telephone with a nickname "Ericsson", model 788 knowing or believing the same to be stolen good.

2. On 16th October 1998, she was sentenced. The Learned Magistrate, Ms. Miranda Chow had heard the mitigation plea. I observe in passing counsel was by then acting both for the 1st Defendant who was the common law husband of the Appellant and the Appellant herself. In mitigation, it was urged on her behalf that she had to look after two young children aged 21/2 and 11/2 respectively. So this fact was made known to the Learned Magistrate before she sentenced the Appellant. It was also said on her behalf that although she had a number of convictions, she never had the benefit of a suspended sentence. I am most amazed by that representation.

3. Learned counsel for the Government, Mr. Brook very kindly described that as being slightly misleading. I call a spade a spade. What counsel said was plainly wrong. It is an everyday practice in the criminal courts that counsel must be provided with a conviction record before he begins his mitigation plea.

4. In the case of the Appellant, there were nine previous appearances before sentencing courts. And on two occasions, the sentencing courts had suspended the terms of imprisonment which were then imposed. There was one in 1996 April of that year, another time in July of 1997. For counsel who held out the representation that his client never had the benefit of a suspended sentence was totally irresponsible and I express my utmost concern. He may have done this out of carelessness, but what had been said by him cannot be imputed to the Appellant. What had been said by her counsel cannot be imputed to her and she had nothing to do with this part of her mitigation. I would definitely not hold anything against the Appellant. It shows by way of a very unfortunate example what damage an irresponsible advocate could cause to his own client.

5. Today, the Appellant is fortunate enough to have the able representation of Mr. Marray. He had submitted to me on her behalf that at the time of the commission of the offence, the Appellant was under the influence of her common law husband, the 1st Defendant. This I note in passing again was not urged upon the Learned Magistrate on the Appellant's behalf at the time of the mitigation plea. This highlights the undesirability of one counsel acting for both the husband and the wife. This also highlights the undesirability of one counsel acting for both Defendants in the face of a potential conflict.

6. Again, I take the view the omission is not mentioning this aspect, this aspect of the mitigation plea cannot be imputed to the Appellant. It would not be fair to the Appellant in the present hearing. Therefore, I have to look at all the materials before me in order to find whether there is any evidence substantiating this mitigation, that is to say the Appellant was acting under the influence of your common law husband. In this regard, paragraphs one and two of the Brief facts are instructive. I should add that both paragraphs one and two, for course, had been admitted by the Appellant.

7. It says on 5th September 1998, Prosecution Witnesses 2 to 5 were on duty conducting anti-pocket operation in Mongkok area. At about 18:12 hours, Prosecution Witnesses 2 and 4 spotted the 1st and the 2nd Defendant standing on the pavement of the above location facing the crossing line, but they did not cross the street after the traffic lights had changed for two times. At 18:40 hours, Defendants 1 and 2 followed Prosecution Witness 1 in the safety island of the above location. The 1st Prosecution Witness was carrying a rucksack on her back at that time. The 1st Defendant then used his right hand to open the outer pocket of 1st Prosecution Witness's rucksack and took out the property and immediately handed over to the 2nd Defendant. The 2nd Defendant turned a round and intended to go away. Prosecution Witnesses 2 and 3 then stopped the two Defendants separately.

8. Quite clearly in the facts that I have read out, both the 1st Defendant and the Appellant were embarking upon an observation exercise before the prospective victim was located. On any view when one looks at these admitted facts, whether one calls its theft by way of a joint enterprise or handing stolen goods, the Appellant had played an active role in the act of stealing. It is the criminality of the act that is to be considered and that incidentally is the only material that I can act on in deciding whether the Appellant was acting under the influence of her common law husband. Save and except the relationship is that of a man and a woman or the relationship was the Defendant was living with the 1st Defendant as man and wife, I cannot from the admitted facts find that she was so acting under the influence of him. The only conclusion I can arrive at is she had played an active role in this matter.

9. On the perfected grounds of appeal, it is said that the husband was the principal offender. It is not really necessary for me to come to any conclusion in that regard. Suffice it to say that the Appellant and the 1st Defendant were together at the time when the stealing took place. They were together before the commission of the offence. They were together observing at prospective victims. I therefore come to the view that I should not really draw any distinction between the two. I now turn to the second ground of appeal.

10. This in essence is a plea of ad misericodiam asking the court to exercise mercy. I have already said that the fact that she has to look after two young children was placed before the Learned Magistrate when she was sentenced. I am told by counsel Mr. Marray that the two young children had been under the care of a very kind and caring local couple. However, the gentleman is a China trader and has to be out of Hong Kong on a regular basis. I had also been told this morning that the lady is desirous of rejoining her previous employment as a shop assistant. Moreover, after the luncheon break, I am now told that the desire to join her previous employment is immediate.

11. In considering this aspect of humanitarian ground, I must express a word of gratitude to learned counsel for the prosecution Mr. Brook. Mr. Brook had set a very high standard for himself. He cited a number of English authorities assisting the court and the Appellant's counsel in approaching this particular subject matter. I have been referred to the case of Frank LyN (1981) 3 Cr. App. R (S) 65; The case of Whitehead (1996) Cr. App. R. 111 and the case of Refan (1979) Cr. L. Rew. 2061. These authorities show every clearly that children, young children per se do not operate as humanitarian grounds. I agree with Mr. Brook when he said "you need something more". The sentencing in court when faced with an alternative of a custodial or non-custodial sentence is often influenced by the consideration of young children. Also, a sentencing in court can reduce the sentence if young children had intrinsic and extrinsic problems including problems of sickness, illness, lack of suitable care in supervision etc. But this case is quite different, there are just insufficient compelling circumstances for me to intervene.

12. The Learned Magistrate had referred to an authority which had set out the guidelines and tariffs for offence of this type. She had specifically given credit for the guilty plea, in these circumstances, nine months' imprisonment cannot be said to be manifestly excessive. In these circumstances, the appeal must be dismissed.