THE QUEEN v. TRINH QUANG HUNG

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HEADNOTE

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PICKPOCKETING - SENTENCE - TARIFF

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1012 OF 1989

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J U D G M E N T

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1. The appellant was convicted on his own plea of a single charge of theft, and was sentenced to two years' imprisonment. The theft here in question was of the sort commonly referred to as "pickpocketing".

2. On October 22, 1988, in Tsim Sha Tsui, the appellant abstracted certain property from the handbag of a lady pedestrian. The property consisted of over a thousand dollars in cash, a credit card and certain other cards. The learned magistrate obviously took a very serious view of this sort of offence; and in that he cannot be faulted. He also took a dim view of the appellant's record; and he is also justified in taking that view. However, it would appear - and the Crown concedes this - that the sentence of two years' imprisonment imposed by the learned magistrate is beyond the upper limit of the tariff in cases of this sort. By "cases of this sort" I mean cases in which a single pickpocket acting alone abstracts property without the use of a razor blade or equipment of that nature.

3. The learned magistrate in his Reasons for Sentence referred to "confused dicta" in this Court regarding the tariff for cases of this sort. The decisions drawn to my attention are all of experienced criminal judges; and if there really was confusion in the matter, I would not be confident of my ability, in this judgment, to remove that confusion. However, I do not think that there really is any confusion when one reads those judgments with the care which a busy magistrate's schedule may not always permit.

4. The tariff on conviction after trial ranges from nine to fifteen months' imprisonment in cases of this sort. The width of the range is indicative of flexibility and not of confusion.

5. There are instances in which one finds elements of aggravation making a sentence beyond fifteen months' imprisonment appropriate. I can think of a number of examples: If a pickpocket were to wait outside a factory on pay day in order to relieve some unfortunate factory worker of his entire pay packet, upon which his family is dependent for the month, then that would, in my view, be a case in which a sentence beyond fifteen months' imprisonment may very well be called for. Likewise, if a pickpocket were to wait at a train station to relieve someone obviously on his way to visit his family in China of all his money intended for the trip, a sentence beyond fifteen months' imprisonment may well be appropriate.

6. No such factor of aggravation is to be found in the present case. The maximum sentence that would be appropriate in cases of this sort is one in the region of fifteen months' imprisonment. And in the normal way that would be the maximum following a conviction after trial as opposed to a plea of guilty. Here, the appellant did plead guilty. However, he has a very bad record. Some of the learned magistrate's remarks do provide some basis for fearing that he may, to some extent at least, have sentenced the appellant "... on his record and not for what he actually did ..." (to borrow the words used by Bewley, J. in Chau Chi-man v R [1980] HKLR 703 at p.705). Be that as it may, interference in this case is in any event warranted on the basis that the sentence imposed goes beyond the tariff when there is no justificaton for that. The way in which the appellant's record is relevant, is as follows: Having regard to all the circumstances, including the record and the circumstances in which the plea of guilty came to be tendered, his record cancels out any discount to which the appellant might otherwise be entitled in light of his plea.

7. I proceed, therefore, on the basis that the appellant deserves, and should receive, a sentence at the upper end of, but not beyond, the tariff. I, therefore, allow the appeal to the extent of reducing the appellant's sentence of two years' imprisonment to one of fifteen months' imprisonment.