HKSAR v. Munkh Erdene, Munkhzaya

HCMA 325/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 325 OF 2017

(ON APPEAL FROM KTCC NO 1021 OF 2017)

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Before: Deputy High Court Judge Stanley Chan in Court

Date of Hearing: 25 July 2017

Date of Judgment: 4 August 2017

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J U D G M E N T

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1.This is an appeal by the Appellant against her sentence after she pleaded guilty to the charge of theft before Mr Ernest Lin, Principal Magistrate on 26 May 2017. The Appellant was sentenced to 6 months’ imprisonment.

The prosecution case

2.The Appellant is aged 20 and was a visitor to Hong Kong from Mongolia.  At the material time, the Appellant was seen by the staff of Zara Fashion Store at Telford Plaza.  The Appellant, who was carrying a black handbag, was acting furtively inside the shop.  The Appellant eventually left the shop without triggering the anti‑theft alarm.  The staff of the shop intercepted the Appellant outside the shop and checked the Appellant’s handbag. Inside the said handbag, the staff found 3 items of clothing as particularized in the charge.  The retail value of these items amounted to HK$1,147.  It was found that the inner layer of the said handbag was lined with tin‑foil.  The Appellant had no money.

Grounds of appeal against sentence

3.The Appellant filed Form 102, with which a piece of paper with a few sentences in English, was attached, on 5 June 2017.  The Appellant said she did not write the sentences but has signed the paper.  It was said the Appellant “considered the sentence too severe and too long to serve.  I do worry about my family.  I would like the High Court to consider my request on humanitarian grounds”[1].

4.In the appellate proceedings, the Respondent’s submission was interpreted by the Mongolian interpreter and the Appellant indicated clearly that she understood the content of the document.  The Appellant reiterated her innocence in this incident, but was told that she should focus on the issue of sentence as she only appealed against the sentence.

5.The Appellant maintained that as she is being detained, she could not reach her family.  She worried about the well beings of her family members.  The Appellant said she did not take the clothes herself and did not know that the handbag is lined with tin foil.

Consideration

6.The Magistrate made it clear in his Reasons for Sentence that “the handbag had been lined with tin foil, a trickery commonly used to evade the security device installed in shops where merchandises are displayed in an open setting”[2].  Inside the handbag carried by the Appellant found a vest, a skirt and a dress, with which the anti‑theft buckles are still attached.

7.The Magistrate remarked that the Appellant is a tourist with no money on her.  She had no fixed place of abode in Hong Kong.  It was not a case of a spur of momentary greed.  “It was an offence committed deliberately, with premeditation and some degree of sophistication”[3].

8.In mitigation, the Magistrate was told that the Appellant was a housewife back in Mongolia, and that the clothes so stolen were for her own use.  She had no record in Hong Kong.

9.The Magistrate relied on the case, HKSAR v NARANKHUU Baljinnyam [4] where very similar facts were disclosed.  The Court in that case took the view that a starting point of 9 months was appropriate.  As such, with the plea from the Appellant which allowed the Appellant to have 1/3 discount in sentence, the Magistrate sentenced the Appellant to 6 months’ imprisonment.

10.I cannot see any flaws in the reasoning and the basis of sentence as applied by the Magistrate.  In fact, it seems that there is no evidence to say when did the Appellant arrive in Hong Kong, and her travelling pattern, if any.  To that end, the travel index records of the Appellant should be tendered to provide certain background information of the Appellant.  If the Appellant committed the present offence on the very day when she entered Hong Kong as a visitor, that can be taken as an aggravating factor.  There is also no information as to the content of the handbag, other than the stolen property, carried by the Appellant.  If there was nothing else, it can provide a strong inference that the Appellant carried the ‘anti‑anti‑theft’ handbag with the sole purpose of shoplifting.  It may well be a crime involving syndicates.

Conclusion

11.There are no valid grounds put forward by the Appellant against her sentence, and the appeal is accordingly dismissed.

Ms Irene Fan, SPP of the Department of Justice, for the respondent

The appellant appeared in person