THE QUEEN v. TRAN QUANG TIEP

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 556 OF 1993

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J U D G M E N T

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1. The appellant in this case was caught by an off duty police officer stealing money from the purse of a lady aged 62 and was convicted on his own plea of guilty to a charge of theft. He was at the same time convicted of a charge of resisting arrest because he put up a struggle when the police officer at the scene tried to arrest him. He pleaded guilty to that offence also. For the first offence, he was sentenced to 18 months’ imprisonment and for the second offence to 3 months’ imprisonment consecutive.

2. It is against the sentence on the pickpocketing offence, the theft offence which he now appeals on the ground that it is manifestly excessive and out of line with the recognized tariff. It is common ground between the appellant and respondent today that the maximum sentence after a trial in a normal case is about 15 months’ imprisonment. This might be higher if there were aggravating circumstances and such circumstances would be theft in public transport or crowded places or where there was an organized gang operating. The only circumstance adverted to by the magistrate in his Reasons for Sentence is the age of the lady whose purse was taken, but it seems to me that that is not an aggravating circumstance. The magistrate speaks of the necessity for elderly ladies to be safe in the streets of Hong Kong but there is no suggestion that there was any threat to the personal safety in the lady in question. She simply had her purse stolen. Therefore, it seems to me that the magistrate should have looked at a starting point of 15 months’ imprisonment and then reduced it in the light of the plea of guilty and the mitigating circumstances which were brought to his attention.

3. It is true that the appellant was caught red-handed and in those circumstances, the plea of guilty will not necessarily attract a very high discount, but it is right in the vast majority of cases that some recognition of the plea of guilty should be given by the sentence in court. The appellant has six similar previous convictions and the magistrate described him as having a shocking record. The relevance of the previous convictions is to remove any possibility of a reduction in terms of the appellant’s good character, but it is not a reason for increasing a sentence. It is not right to sentence an offender not for the offence but for his record and there is no justification in the present case for any enhancement of sentence for the purpose of disabling the appellant. The appellant is a heroin addict and it is apparently because of his addiction that he repeatedly offends.

4. Taking all the circumstances into account, I think that the appropriate sentence should have been 12 months’ imprisonment. The sentence of 18 months will be set aside and a sentence of 12 months will be substituted. The appeal is allowed accordingly.