HKSAR v. Shurenchimeg, Naranchimeg

HCMA 603/2018

[2019] HKCFI 960

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 603 OF 2018

(ON APPEAL FROM ESCC 1848/2018)

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Before: Hon Toh J in Court

Date of Hearing: 25 February 2019

Date of Judgment: 25 February 2019

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J U D G M E N T

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1.The appellant had pleaded guilty to one charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.The facts were that in July 2018, shortly after 2:00pm, the appellant together with an Asian male had entered a clothing store in Hollywood Road.  After wandering around the shop, the appellant went to the cashier table and stole an iPhone 6 Plus which belongs to the manager of the shop.  When the victim discovered the theft, she immediately contacted the police and police officers very quickly identified the culprit from the CCTV camera and in the vicinity the appellant was arrested.

3.The appellant is 33 years old and is a Form 8 holder from Mongolia.  The learned magistrate correctly said that this was an opportunistic theft.

4.In mitigation, her counsel had put before the learned magistrate that the appellant should be entitled to the full one‑third discount for her plea because this was the first opportunity she had of receiving legal advice; and also, he gave facts of her background.  The appellant is a Form 8 holder in Hong Kong; however, the appellant is not a first time offender.  She has had two previous convictions of theft, also shoplifting, and her last conviction was in April 2018, about three months prior to this present offence, for which she was sentenced to three weeks’ imprisonment; and she had to also serve the suspended sentence of two weeks.

5.The learned magistrate also correctly considered that this was an offence with premeditation because the appellant had only spent about two minutes in the shop before stealing the iPhone.  The learned magistrate also said that she did not accept that the appellant was determined to turn over a new leaf because she had committed this present offence shortly after her release from prison and in the circumstances of the appellant’s background, the learned magistrate was correct to say that this called for a deterrent sentence.  And also, the appellant, in the present case, is a Form 8 holder and she abused the privilege given to her that allowed her freedom prior to her application being considered by targeting shops and committing her theft offences, so the learned magistrate considered that the addition of two and a half months should be added to the sentence.

6.Furthermore, in view of the recent guidelines as to sentence, the learned magistrate considered that the appropriate discount should only be 20 percent and the learned magistrate said that she was not entitled to the full one‑third discount because the appellant had all along been provided with interpretation since her first appearance in court and so the learned magistrate considered that she had to follow the new sentencing principle as to discount.  The learned magistrate adopted a starting point of three months’ imprisonment and added two and a half months’ imprisonment for the aggravating factors that she is a Form 8 holder and yet continuously abused the hospitality of the Hong Kong people and gave her a 20 percent discount and sentenced the appellant to 14 months’ imprisonment.

7.The appellant who appeared in person in this court submitted that she did not consider the 14 months’ imprisonment to be reasonable.  She considered it to be too severe because it would appear that she did not get a natural discount; secondly, she also said that she was sorry for what she did and that she was hoping that the court will grant her an early release so that she can go home because of her family; and thirdly, she claimed that she did not know what the enhancement of the sentence was for.

8.As I have said, the learned magistrate had in her reasons for sentence fully explained why her discount was only 20 percent and not the full one‑third and I do not need to repeat what I have said.  Her remorse about committing this present offence does not seem to me to ring true because she has had two other chances and she still continued to commit this present offence.

9.As for the enhancement, it is correct that the Court of Appeal had said that visitors who come to Hong Kong to commit crime and also Form 8 holders allowed their temporary freedom of movement in Hong Kong, and they commit a crime in Hong Kong, the sentence should be enhanced to show the frustration of the local community for people, like the appellant, who abused their freedom of movement.

10.Although having looked at the facts of the case and all the matters pertaining to the appellant, the sentence cannot be said to be light; however, the success of an appeal against sentence is whether the sentence is manifestly excessive and/or wrong in principle, I cannot say that the learned magistrate was wrong in principle, nor can I say that the sentence was manifestly excessive.  Though it is not light, it cannot be said to be manifestly excessive, so I cannot see any grounds of appeal that could successfully allow this court to interfere with the original sentence, so the appeal is dismissed.

Ms Jasmine Ching SPP, of the Department of Justice, for the respondent

The appellant appeared in person