HKSAR v. PHAM VAN HUY
- Citation
- HKSAR v. PHAM VAN HUY
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- Court of First Instance
- Decision
- 29 November 2007
- Posture
- Magistracy Appeal (magistracy Appeal No. 1007 of 2007; on Appeal From KCCC 5559 of 2007) / Appeal Judgment
- Case number
- HCMA1007/2007
- Language
- English
More details
- Court
- Court of First Instance
- Decision
- 29 November 2007
- Posture
- Magistracy Appeal (magistracy Appeal No. 1007 of 2007; on Appeal From KCCC 5559 of 2007) / Appeal Judgment
- Case number
- HCMA1007/2007
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held the 12 month sentence on Charge 1 was not manifestly excessive given the appellant's prior convictions, and that imposing the 2 month sentence on Charge 4 consecutively would be excessive; therefore the sentence on Charge 4 must run concurrently with Charge 1.
Court disposition
Appeal allowed in part
Orders
- Sentence on Charge 4 to run concurrently with sentence on Charge 1
- Sentence of 12 months on Charge 1 upheld
02
Material facts
Parties
HKSAR
Respondent Counsel: Miss Laura Ng, SGC of Department of JusticePHAM VAN HUY
AppellantAmounts and remedies
- Previous Convictions Count: 21
- Sentence Length Charge1: months 12
- Sentence Length Charge4: months 2
03
Procedural history
Posture
Magistracy Appeal (magistracy Appeal No. 1007 of 2007; on Appeal From KCCC 5559 of 2007) / Appeal Judgment
04
Questions and positions
Legal issues
- 01
Whether the 12 month sentence on Charge 1 was manifestly excessive or wrong in principle
- 02
Whether the 2 month sentence on Charge 4 should run consecutively or concurrently
- 03
Whether the offences being committed on the same occasion and the minor nature of obstruction affects concurrency decision
Party arguments
- Applicant
- Appellant (in person) argued the sentencing outcomes were excessive and that the sentence on Charge 4 should not be consecutive to Charge 1.
- Respondent
- Respondent (HKSAR, represented by Miss Laura Ng) argued the 12 month sentence on Charge 1 was not manifestly excessive given the appellant's extensive prior convictions and that the sentencing exercise was within proper discretion.
05
Court’s reasoning
Legal principles
- 01
Common law appellate sentencing principles
Appellate review for sentence is whether sentence is manifestly excessive or wrong in principle
- 02
Common law sentencing jurisprudence
Sentences for offences committed on the same occasion may be ordered to run concurrently where appropriate
- 03
Common law sentencing principles
Principle of totality requires overall sentence to be just and proportionate
06
Ratio, limits and disposition
Ratio decidendi
The court held the 12 month sentence on Charge 1 was not manifestly excessive given the appellant's prior convictions, and that imposing the 2 month sentence on Charge 4 consecutively would be excessive; therefore the sentence on Charge 4 must run concurrently with Charge 1.
Obiter and limits
- The two offences were committed on the same occasion and the obstruction was very minor.
- The appellant had 21 previous convictions for similar offences, which informed the sentencing exercise.
Court disposition
Appeal allowed in part
- Sentence on Charge 4 to run concurrently with sentence on Charge 1
- Sentence of 12 months on Charge 1 upheld
Source and reliance status
Court of First Instance · 29 November 2007
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court of First Instance
Judgment· 29 November 2007
bjbj HCMA1007/2007
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 1007 OF 2007 (ON APPEAL FROM KCCC 5559 OF 2007) ----------------------
BETWEEN HKSAR Respondent and PHAM VAN HUY ( by the magistrate on Charge 1, having regard to the appellant s previous convictions which includes 21 previous convictions for similar offences as Charge 1, is neither manifestly excessive nor wrong in principle in relation to the sentence of 12 months. In my view the sentence on Charge 4 of two months would be excessive if it were made consecutive.
AUTONUMOUT The two offences were committed on the same occasion and the nature of obstruction is very minor.
AUTONUMOUT I allow the appeal to the extent that the sentence on Charge 4 will run concurrently with the sentence on Charge 1. (Peter Nguyen) Judge of the Court of First Instance, High Court Miss Laura Ng, SGC of Department of Justice, for HKSAR The appellant in person
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