HKSAR v. Ganbold Chinzorig

HCMA 126/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 126 OF 2016

(ON APPEAL FROM KCCC 4484 OF 2015)

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R E A S O N S   F O R   J U D G M E N T
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1.The appellant pleaded guilty to one count of theft (pick-pcketing) contrary to section 9 of the Theft Ordinance, Cap 210 before Ms Percy Yue sitting at the Kowloon City Magistrate's Court on 23 February 2016. On that date he was sentenced to 14 months imprisonment. He now appeals against that sentence on the ground that it is too severe.

Brief facts

2.The victim, Ms Kwok, was walking along Carnarvon Road, Tsim Sha Tsui, Kowloon at 2230 hours on the evening of the 17 December 2015.  The appellant approached her from the rear and placed his hand in her jacket pocket taking out her mobile phone.  Ms Kwok felt the movement and immediately grabbed the appellant with the assistance of a passerby. The appellant was detained and later arrested at the scene.

Appellant's background

3.The appellant is 29 years old and is a torture claimant.  He came to Hong Kong in 2013 and applied for refugee status.  He is single and is supported by his family in Mongolia as well as the ISS.  As a Form 8 holder, he is not allowed to seek employment in Hong Kong.  He has a criminal record dating back to 2007 when he last visited Hong Kong.  On that occasion for an offence of theft he was given a 5-day sentence.  Since he returned to Hong Kong he has been before the courts a further 4 times.  Each time was for theft or attempted theft.  In October 2013, he received a 15-month sentence for one count of attempted theft and in June 2015, he received a 12-month sentence for another count of attempted theft.  In October 2015, he received a 7-week sentence for theft and had been out of prison for just 7 days when he committed the current offence.

Mitigation

4.The appellant was represented by Mr Robert GM Chan of Counsel.  On his behalf he submitted that the appellant had acted out of impulse being slightly intoxicated at the time; he was very remorseful and undertook not to drink again.  He also mentioned a kidney complaint from which the appellant suffered.  

Sentence

5.The magistrate took a starting point after trial of 12 months imprisonment following the guideline set out in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  He increased that sentence by 3 months because the appellant is a repeat offender and had only just been released from prison.  He increased it by a further 3 months because the offence was committed at night in a busy shopping area in which tourists were doing their Christmas shopping.  Lastly, he increased the starting point by a further 3 months because of the intoxication of the defendant.  The total starting point after trial was therefore 21 months imprisonment which, after deduction for plea, became 14 months.

Conclusion

6.The appellant contends that sentence was excessive.  I do not agree.

7.The magistrate rightly considered the appellant's previous offending to be an aggravating feature.  The court was entitled to take into consideration the appellant's previous offending history and to increase the starting point to reflect that behaviour, not to punish the appellant twice but to mark the practical reality which is that this appellant has learned nothing from previous sanctions and a greater deterrent is necessary in order to dissuade him from offending again: R v Simon Tam HCMA 489 & 490 of 1996; HKSAR v Chan Pui-chi [1999] 2 HKLR 830.  Indeed, the magistrate could not have been criticised for adopting a greater starting point than he in fact did as the guideline starting point for a first time offender under HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 is an immediate custodial sentence of 12-15 months.  The appellant is clearly not a first time offender.

8.It was entirely appropriate for the magistrate to take into account the fact that the appellant had been drinking and by reason of so doing must have known that he put himself in the way of temptation when he went to Carnarvon Road during the Christmas shopping period.  This is not the first time that the appellant has relied upon self-induced intoxication as a defence or mitigation.  He did so when being dealt with under DCCC 56/2015 for matters very similar to those before the court.  I have no doubt that he knew exactly what he was doing that evening. 

9.Theft by pick-pocketing is an offence society rightly condemns, involves a significant degree of inconvenience, a direct invasion of privacy and brings about adverse publicity to Hong Kong.  It is therefore one which rightly attracts a heavy penalty. 

10.The sentence of 14 months passed upon the appellant was not a day too long.  No complaint could have been made of a much more substantial starting point and increased enhancement for the three factors mentioned above as well as the aggravating feature of the appellant's refugee status about which no comment was made.

11.This appeal against sentence is dismissed.

Mr Pierre Lui, PP of Department of Justice, for the respondent

The appellant appeared in person