THE QUEEN v. PHAM TUAN ANH AND ANOTHER

bjbj HCMA000326/1990 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 326 OF 1990 ------------------- BETWEEN THE QUEEN Respondent and PHAM TUAN ANH 1st Appellant (D1) TRAN VAN TUAN 2nd Appellant (D2) ------------------- Coram : Hon. Hooper J. in Court Dates of hearing : 15th and 29th June 1990 Date of delivery of judgment : 29th June 1990 --------------------------------------- REASONS FOR JUDGMENT --------------------------------------- The appellants were both convicted on the 15th February 1990 after trial for an offence of attempted theft and sentenced to 15 months imprisonment each. The circumstances of the offence which were accepted by the magistrate are as follows :- At the material time PW2 and PW3 were on duty in plainclothes. They saw D1 and D2 paying attention to ladies handbags. That aroused their suspicions and as a result PW2 and PW3 followed and observed them. At one time D1 and D2 followed a lady who had a handbag hanging from her right side. D1 put his hand under the handbag to support it whilst D2 stood next to the lady. But the lady stopped and went inside a building and D1 and D2 left but still followed by PW1 and PW2. When D1 and D2 got to Argyle Street near Sai Yee Street to a set of traffic lights there were people waiting to cross the road. There D1 walked behind a lady. That lady had a handbag hanging on her right shoulder the opening of which is secured by a knot. D1 undid the knot and put his left hand into handbag. At that time D2 stood next to D1. Then D2 looked in the direction of PW2 and PW3 and then used his hand to pull D1 s shoulder. Then D1 withdrew his hand. PW2 and PW3 then went forward to intercept and later arrested D1 and D2. Having considered the evidence for both the Crown and the appellants, the learned magistrate said :- I had no doubt that D1 and D2 acted in concert in their enterprise where D1 attempted to steal from the lady s handbag whilst D2 kept a look-out for him. I found the charge proved beyond reasonable doubt and I convicted both Defendants. The appellants, who were unrepresented in respect of their appeals against conviction, each indicated that they abandoned those appeals. However, they were represented by Mr Nguyen instructed by the Legal Aid Department on their appeals against sentence. The grounds of appeal were :- That the sentence imposed by the learned Magistrate of 15 months was manifestly excessive, having regard to the following :- (1) the starting point of 18 months adopted by the learned Magistrate was too high (see R v. YING YU-FAI M.A. 1684/88); (ii) insufficient weight was given by the learned Magistrate to the Appellants clear records; (iii) there were no aggravating features in the case, such as the use of instruments, like razor blades or knives or the fact that the arrests were resisted by the Appellants. The magistrate, in his reason for sentence, said :- I see no mitigating factors in this case at all. The Defendants attempted to pickpocket over a stretch of road in the Mongkok area just that they were not successful. However, I gave the Defendants discount for having a clear record. I adopted a starting point of 18 months. With the greatest respect to the magistrate, he appears to have overlooked entirely the young ages of the appellants. The 1st appellant was 18 years of age at the time of the offence while the 2nd appellant was 19 years of age. Both had clear records. When a court is dealing with young people of this age, clearly the court should be governed more by individualised measures than by any sort of tariff. It is only when these offences are so grave that the case for a tariff sentence is overwhelming or their previous reactions to such measures indicate that such an approach would be fruitless that a tariff sentence should be considered. In this case, no reports were called for under section 109(a) of the Criminal Procedures Ordinance. For these reasons, I adjourned the appeal pending the usual reports from the probation officer and the Commissioner of Correctional Services. However, because of the communication problem and the cultural differences, the probation officer in each case did not recommend probation and similarly for the same reasons, the Commissioner of Correctional Services did not consider them suitable either for detention in a training center or a detention centre. There being no other more appropriate way of dealing with the appellants than to pass a prison sentence, the question arose as to what would be a proper sentence. Clearly, the starting point of 18 months adopted by the magistrate was far too high in the light of the previous decisions of this court. It was quite inappropriate for a case of this sort where the appellants were both young and had only been convicted of an attempted offence. Eventhough a prison sentence is appropriate, I consider it to be a case where the personal considerations of the accused were very important, and that the short, sharp shock referred to by Sears J. in R. v. Bui Van May, magistracy Appeal 336/90 was appropriate. Both appellants have been serving their sentences since the 15th February 1990. They were both arrested on the 4th January 1990. The 1st appellant remained in custody from the time of his arrest until his conviction whilst the 2nd appellant was released on bail on the 20th January, having spent some 16 days in custody awaiting trial. I considered that the time that these two appellants had spent in custody was a sufficient period to qualify under the short, sharp shock principle and I allowed the appeals against sentence and reduced sentence to such length as would enable their immediate release. (N.B. Hooper) Judge of the High Court Representation: Mr Peter Nguyen (DLA) for Appellants PHAM Tun-anh & TRAM Van-tuan Mr D.G. Saw, C.C., for Crown PAGE PAGE - - &`#$ HCMA 000326/1990 Normal.dot Judiciary Hong Kong SAR Microsoft Word 9.0 Judiciary Hong Kong SAR coleasun HCMA 000326/1990 Title Microsoft Word Document MSWordDoc Word.Document.8 HCMA 000326/1990 Normal.dot Judiciary Hong Kong SAR Microsoft Word 9.0 Judiciary Hong Kong SAR HCMA 000326/1990 Title Judiciary Hong Kong