THE QUEEN v. NGUYEN DUC NHAN

1993, No. MA618

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HEADNOTE

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SENTENCE - TWO PICKPOCKETING CONVICTIONS IN DIFFERENT COURTS - TOTALITY PRINCIPLE.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 618 OF 1993

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BETWEEN

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J U D G M E N T

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1. The appellant was convicted by Mr Lim in Shatin Magistrate’s Court of three offences :-

(1) Theft;

(2) Misleading a police officer by giving false information about his identity;

(3) Escaping from legal custody.

2. He was sentenced to consecutive sentences of 15, 3 and 2 months’ imprisonment respectively.

3. He was convicted on his pleas of guilty to all three charges on 21st July this year. The escaping offence occurred on 5th June 1991, the other two offences on 17th May 1993. On the latter date he was on bail in respect of another theft case which occurred on 29th December 1992 and of which he was convicted on 21st June 1993. On that date he was sentenced to 15 months’ imprisonment by another magistrate. He was serving this sentence when he came before Mr Lim on 21st July.

4. The appellant was a detainee at Whitehead Detention Centre. He had escaped from his escort as a ferry from Chi Ma Wan docked at Queen’s Pier. Both theft cases involved pickpocketing.

5. The magistrate took the view that, as the three offences were committed on a different date to the other theft case, the sentence must be consecutive to the sentence on that charge. In his Statement of Findings dated 27th July he suggests that this court might, on humanitarian grounds, reduce the sentences by 20%.

6. Any reduction should, with respect, be based not on humanitarian grounds but on the totality principle, which the magistrate seems to have ignored. A total of 35 months for these offences is clearly excessive, which is conceded by counsel for the respondent.

7. The appeal is allowed. Nine months of the 15 months’ sentences imposed on 21st July are ordered to run concurrently with the 15 months’ sentence imposed on 21st June. The effect is that the appellant will serve a total of 26 months’ imprisonment.

Miss L. CHI, Asst. Crown Prosecutor (Ag.), for Crown

Mr Mullick, inst’d by D.L.A., for Appellant