HKSAR v. Tumendelger Byambadelger

CACC 247/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 247 OF 2015

(ON APPEAL FROM DCCC NO. 362 OF 2015)

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BETWEEN

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JUDGMENT
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Introduction

1.On 17 July 2015, the applicant pleaded guilty before HH Judge A Kwok to four charges of theft, all of which took place inside the bar known as “Graffiti” in Lan Kwai Fong in Central, contrary to section 9 of the Theft Ordinance, Cap 210.  He was sentenced to a total sentence of 24 months’ imprisonment.  He now seeks leave to appeal against his sentence.

The facts

2.Charge 3 was a case of “pickpocketing”, while Charges 1, 2 and 4 involved what is commonly referred to as “theft by finding”, although each of the charges concerned the theft of a mobile telephone belonging to four different victims inside the same bar in the early hours of 15 March 2015.

3.In respect of Charge 3, the victim, Ms Lam, was inside the bar at about 4:20 am when she felt that her bag had been bumped into.  Accordingly, she immediately checked the contents and discovered that her mobile telephone was missing.  On seeing the applicant leaving the bar in a hurried manner, she alerted her friends who subdued him a few metres away from the entrance to the bar.  Ms Lam’s mobile telephone was found tucked inside the applicant’s waistband.  These facts formed the basis of the “pickpocketing” offence (Charge 3).

4.The police having been alerted and arrived at the scene, a further three mobile telephones were found in the possession of the applicant; two inside his left jacket pocket, and a third upon a later body search at the police station inside his left shoe.  The owners of the three respective mobile telephones were contacted.  They were all found to have been present at the same bar in the early hours of the same day, namely 15 March 2015.  Likewise, they had all discovered that their mobile telephones had gone missing.  Each of the three owners identified one of the mobile telephones found on the applicant as belonging to them. These facts constituted the so-called “theft by finding” offences (Charges 1, 2 and 4).

5.In his video-recorded interviews with the police, the applicant said that he had arrived in Hong Kong from Mongolia on 13 March 2015, via Beijing and Shenzhen.  On 14 March 2015, he took a ferry from Tsim Sha Tsui to Hong Kong Island, and then walked to Lan Kwai Fong.  He claimed that he had found and picked up two mobile telephones from the floor of the bar, and a third from the pavement outside.  However, it was accepted by the applicant’s solicitor at the hearing that the applicant had pickpocketed Ms Lam’s telephone.[1]

6.Extraordinarily, given the circumstances in which four mobile telephones were stolen in the same bar within a short space of time in the early hours of the same day, the prosecution accepted the applicant’s explanation that he had merely found and picked up the three mobile telephones in Charges 1, 2 and 4.[2]

Mitigation

7.In mitigation, it was submitted that the applicant was 24 years old and a Mongolian national.  He had two younger sisters, aged 13 and 17, for whom he was financially responsible.  He had a clear criminal record hitherto in Hong Kong and claimed to have come to the territory as a tourist.

8.The applicant had gone to the bar in Lan Kwai Fong on the night in question for a few hours “to have a look”.  In the course of the evening, he had come across three mobile telephones on the ground.[3]  However, the last telephone was pickpocketed out of greed.

9.The case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, was referred to by the applicant’s solicitor, in which the Court of Appeal laid down certain guidelines in pickpocketing cases, in particular a starting point of 12 to 15 months’ imprisonment after trial for a first offender, with no other attendant aggravating features.[4]

10.It was submitted that, since the prosecution had accepted that the applicant had stolen three of the mobile telephones by simply finding and keeping them rather than pickpocketing them, it could not be said with any certainty that he had come to Hong Kong specifically with the intention of stealing.  The case of HKSAR v Ganbold [2015] 1 HKLRD 999 was cited in support of the proposition.

Reasons for sentence

11.The judge observed that the stolen property consisted of valuable ‘smart phones’, each of which would have been worth between HK$4,000 and HK$7,000.[5]  Since such devices could be used to store confidential and valuable personal data, their theft would cause not only financial loss but severe frustration and inconvenience to their owners.[6]

12.As to aggravating features, the judge considered that the offences were committed in the early hours of Sunday morning in an area which one would expect to be very crowded.[7]

13.The judge accepted the submission that the applicant did not come to Hong Kong specifically for the purpose of committing the offences, since three out of the four mobile telephones were accepted to have been picked up from the ground.[8]  The judge noted that had it been otherwise, the applicant would have been liable to a further addition to the starting point of a few months’ imprisonment.[9]

14.The only effective mitigating factor was the plea of guilty.[10]

15.In respect of Charge 3, the judge adopted a starting point of 15 months’ imprisonment, bearing in mind the value of the property in question.[11] This he increased by 3 months since the offence was committed in a crowded bar frequented by many people.  With a one-third reduction, the sentence for Charge 3 became 12 months’ imprisonment.

16.Regarding Charges 1, 2 and 4, the judge adopted a starting point of 9 months’ imprisonment for each offence, bearing in mind the significance and value of the stolen property[12], but also reflecting the prosecution’s concession that the mobile telephones concerned may simply have been found on the ground.  This was reduced to 6 months’ imprisonment for plea.

17.The judge noted that the offences were committed separately in respect of different victims[13] and, in principle, therefore, the sentences could be ordered to be served wholly consecutively.[14]  However, bearing in mind the principle of totality, he decided that only 4 months’ imprisonment of the sentences on Charges 1, 2 and 4 needed to be served consecutively with each other and to the sentence on Charge 3.  The total sentence for the four charges was, therefore, 24 months’ imprisonment.

Ground of appeal against sentence

18.In his Notice of application for leave to appeal (Form XI), the applicant merely says that the length of his sentence is excessive.  In a handwritten letter to the court dated 18 September 2015, the applicant asserts that he was a university student in his final year and asks the court to consider his age.  He also says that his wife had been pregnant, and he wishes to return home to see his family.[15]  He has made the same plea for leniency before me this morning and suggested, in particular, that the sentences for the “theft by finding” charges should have been less.

Consideration

19.I sympathise with the judge’s frustration that the prosecution should have accepted the assertions of the applicant as to how he had come by the mobile telephones in Charges 1, 2 and 4.  It seems extraordinary that the prosecution should have seen fit to accept such unlikely and implausible assertions at face value, when the circumstances of the theft of four mobile telephones within a short period of time in the same bar on the same night would have entitled a judge not merely to reject the applicant’s claims but to find by inference alone that all four victims were directly relieved of their property by the applicant, who had come to Hong Kong for the specific purpose of stealing.

20.The judge expressed his concern as follows:

“14. I have in fact queried the prosecution’s decision [to accept “theft by finding”] because of the unlikelihood of coincidence that you would have picked up the three phones in a row in the same vicinity within a few hours in Lan Kwai Fong, and certainly I have also reminded the prosecution that evidence could be admitted under the “similar fact” rule if explanation of it on the basis of coincidence would be an affront to common sense or would be against all probabilities.

15. However, having enquired with the prosecution, I have the impression that obviously they have their own perspective of the evidence or their assessment of the evidence and, despite the highly suspicious circumstances that I have spelt out, they still hold on to the view and also the decision not to challenge your explanations.

16. I must say that it is not without some reluctance that I have decided not to hold a Newton hearing in this case. However, given the prosecution’s stance on the matter, in the end I doubt that anything would be gained by holding such an inquiry through the cross-examination and/or the submission by the prosecution.

17.  I must say, in this sense, defendant, you should consider yourself very lucky.”

21.The applicant was indeed extremely fortunate that the prosecution adopted the position they did.  Rightly or wrongly, the judge felt that he was prevented from drawing certain obvious and irresistible inferences because of that position.  Had the judge not regarded himself as being so constrained, the sentence passed on the applicant would, and indeed should, have been rather higher than that which he ultimately passed.

22.The ultimate question for me in this application for leave is whether it is reasonably arguable that the overall sentence of 24 months’ imprisonment after plea is manifestly excessive for the separate thefts of four valuable mobile telephones at a bar in Lan Kwai Fong, which on Saturday night/Sunday morning may properly be assumed to have been very busy.  Even accepting the notion that no less than three of the mobile telephones were coincidentally and fortuitously discovered on the ground, and only one was removed from the victim directly from her handbag while it was on her person, I do not consider it to be reasonably arguable that 24 months’ imprisonment was in any way manifestly excessive.  These were four separate and individual offences involving the stealing of valuable property from four unconnected victims.  The judge was plainly right to reflect that fact in consecutive elements in sentencing, subject to the principle of totality.

Conclusion

23.This application is refused.  The applicant is duly advised of his right to renew his application for leave to appeal against sentence to the Court of Appeal, but is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

Mr Prakash L Daryanani SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person

[1] Reasons for Sentence, para 12

[2] ibid., para 24

[3] ibid., para 24

[4] ibid., para 19

[5] ibid., para 25

[6] ibid., para 26

[7] ibid., para 29

[8] ibid., para 31

[9] ibid., para 32

[10] ibid., para 34

[11] The cases of HKSAR v Chiu Suet Yee, Angel (unrep., CACC 105/2010) at para’s 10-14, and HKSAR v Liu Linfeng (unrep., CACC 206/2011) were relied upon

[12] Reasons for Sentence, para 36

[13] ibid., para 38

[14] ibid., para 39

[15] Letter to the court dated 18 September 2015