HKSAR v. HO MINH CONG

HCMA000547/1999

HCMA 547/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 547 OF 1999

(ON APPEAL FROM SOUTH KOWLOON MAGISTRACY

CASE NO. NKCC 976 OF 1999)

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BETWEEN
HKSAR Respondent
AND
HO MINH CONG Appellant

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Coram: The Hon. Madam Justice Beeson in Court

Date of Hearing: 23 September 1999

Date of Judgment: 23 September 1999

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J U D G M E N T

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1. This Appellant appeals today against his conviction on an Attempted Theft charge for which he was sentenced to 18 months’ imprisonmenton 18th May 1999. He appeals also against the sentence of 18 months on the ground that that sentence was excessive.

2. His grounds for the appeal in respect of the conviction indicate that he considered the prosecution witnesses were not consistentin giving their evidence. I considered the Magistrate’s Statement of Findings, and I am satisfied that she examined the issues carefullyin this case and that she came to the inevitable conclusion that this was an attempted theft.

3. The attempted theft involved an attempted theft from a handbag. This Appellant was first noticed by police as one of group of 4 menwho appeared to be following passers-by in Nathan Road and paying attention to their handbags and rucksacks. Two of those men, theAppellant and another man, acted in concert while the victim’s handbag was unzipped.

4. The Appellant was observed by the police officers to be acting effectively as a shield by using his jacket to conceal the actionsof his companion. The police arrested the men at the scene.

5. I am satisfied that there was ample evidence on which the Magistrate could convict. I am satisfied that she paid attention to theappropriate matters in her Statement of Findings and I dismiss the appeal against conviction.

6. In considering sentence, the Magistrate took into account the average range of sentence which is 12 to 15 months, after trial, foran ordinary offence of pickpocketing.

7. However, she was aware from the authorities, in particular Van Vy Kien & Anor Mag. App. Nos. 1162 and 1179 of 1990, HKLJ (1991) 279, that the basic sentence can be increased if there are aggravating factors.Here the Magistrate considered that the aggravating factor was that this was an apparently professional operation involving at leasttwo, and possibly 4, men.

8. For that reason, she increased the average sentence by 3 months. The Appellant was convicted after trial, he had not pleaded guiltyto the defence and therefore, he was not entitled to any discount from the starting point.

9. Appellant did not have a clear record; he had 6 previous convictions, 3 of which were similar to the extant offence. Accordingly,he was not entitled to the usual discount or consideration given to somebody who has a clear record.

10. I am satisfied that this is an appropriate sentence and I dismiss the appeal against sentence.

(C-M. Beeson)
Judge of the Court of First Instance

Representation:

Mr. W. S. Cheung, SGC, for DPP

Ho Minh-cong, Appellant, in person