HKSAR v. Pilinovics, Martin Anthony

HCMA 510/2018

[2019] HKCFI 147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 510 OF 2018

(ON APPEAL FROM WKCC 3425/2018)

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J U D G M E N T

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1.This is an appeal against sentence. The appellant was convicted on his own plea to one charge of theft and one charge of burglary and sentenced to a total of 12 months’ imprisonment and also compensation to be paid to the victim of Charge 1.

2.He was represented in the court below by Mr Wong Hay‑yiu, instructed by the Duty Lawyer Service and on appeal he appears in person.

3.The facts are quite simple.  The appellant arrived in Hong Kong as a visitor on 24 July 2018.  On the morning of 30 July 2018, at the Regal Airport Hotel, the victim in the first charge, who was a visitor also from the Mainland, took a lift to the 11th floor of the hotel. Upon leaving the lift, he forgot to take his luggage with him.  When he returned to try and find his luggage, he could not find it, so he reported the matter to the manager of the hotel.  Upon a review of the CCTV footage in the lift, it was seen that the appellant had taken away the luggage from the lift on the 8th floor.

4.On the following morning, the manager saw the appellant carrying the luggage on the 2nd floor of the hotel and he promptly made a report to the police and the police recovered all the stolen items from the luggage except for the underwater scooter.

5.Also, upon a search conducted by the police, it was found that the appellant was holding a bag which contained a box containing 368 MTR tickets and three printer paper rolls.  Again, CCTV footage revealed that on 30 July 2018, the appellant climbed over a glass screen of an unmanned MTR service counter at the Asia World Expo Station and took away the carton box and a few minutes later climbed inside again and took away three printer paper rolls.  The total value of the stolen property was HK$403.60.

6.The learned magistrate heard mitigation from Mr Wong representing the appellant and that Mr Wong submitted that the appellant is aged 51 and is a visitor from the United Kingdom and had been unemployed for nine months.  He came to Hong Kong because he was on his way to Taiwan to meet his fiancée.  He is a first offender and is remorseful and is willing to pay compensation to the victim in the first charge.  Mr Wong stressed that the burglary committed by the appellant was not the more sophisticated type of burglary.

7.The learned magistrate very properly in sentencing considered that Charge 1, was not a pre‑meditated offence.  It was more an opportunistic offence when he stole the luggage in the lift.  However, it had caused great inconvenience to the victim.

8.As for Charge 2, he rightly considered that for non‑domestic burglary, appropriate starting point is one of 2 years and 6 months.  But, again, very properly, the learned magistrate considered that this being an opportunistic burglary, the starting point may be lowered.

9.Having taken into account all the mitigation advanced on behalf of the appellant, the learned magistrate took a starting point of six months for Charge 1 and, because of the plea, gave a discount to the appellant and sentenced him to three months’ imprisonment, having also taken into account the fact that the appellant had undertaken to pay full compensation.

10.As for Charge 2, the learned magistrate took a starting point of 18 months and sentenced him, because of his plea, to 12 months’ imprisonment.  Having considered the totality principle, he ordered that both sentences be served concurrently.

11.The appellant has pleaded in this court that he suffers from a delusional disorder as he had been diagnosed in the UK and he said that he had cut his wrist before coming to Hong Kong on his way to Taiwan to see his fiancée.  However, I do not see how that would serve as proper mitigation in this case.  The fact is it was an opportunistic theft at the time he took the property from the lift.  It was an opportunistic burglary when he climbed over the glass wall partition to steal the ticket and not only did he do it once, he did it twice by climbing over that glass partition again and stealing the printer rolls.

12.His second ground of appeal is that he asked for leniency to reduce the sentence so that he can go back to the UK to deal with matters needing his attention.  I have to consider whether the learned magistrate had sentenced the appellant manifestly excessively.  As I have said, when reading the learned magistrate’s Reasons for Sentence, it is clear that the learned magistrate had considered every matter which was helpful to the defence and arrived at a proper sentence.

13.I cannot see how in the circumstances the learned magistrate was manifestly excessive in his sentence or wrong in principle.  There is no merit to this appeal and so the appeal is dismissed.

Mr Ivan Cheung SPP, of the Department of Justice, for the respondent

The appellant appeared in person