HKSAR v. Badamkhand Batchuluun

HCMA 75/2019

[2019] HKCFI 1506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 75 OF 2019

(ON APPEAL FROM ESCC NO. 262 OF 2019)

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Before: Hon S T Poon J in Court

Date of Hearing: 10^th May 2019

Date of Judgment: 18^th June 2019

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J U D G M E N T

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1.The appellant pleaded guilty to one count of “Theft”[1] before Principal Magistrate Mr Peter Law (“the Principal Magistrate”). The Principal Magistrate took 15 months as the starting point and reduced the sentence by one-third for the guilty plea and sentenced the appellant to10 months’ imprisonment. The appellant now appeals against his sentence.

2.The appellant admitted that he has stolen from the victim a mobile phone in the MTR.

3.The appellant is a Mongolian male.  He was staying in Hong Kong by recognizance pending determination of his non-refoulement claim (a so-called “Form 8 holder”).  He has two previous convictions for “Theft”. 

4.In sentencing the appellant, the Principal Magistrate reminded himself of the guideline under HKSAR v Ngo Van Huy[2].  He also mentioned that one of the aggravating factors of the present offence is that it was committed at a crowded place. 

Grounds of Appeal

5.In his Notice of Appeal (“Form 102”), the appellant simply relied on the standard ground that his sentence was too severe.  In the “Prisoner Submission” attached to the Form 102, the appellant stated that he feels that his sentence is too long as he wants to go back to his country to take care of his mother, who is 96 years old and suffering from heart problems.

6.At the hearing the appellant said he is not saying that there is anything wrong with the sentence imposed by the Principal Magistrate.  He just wants to be released as soon as possible to take care of his old mother.

Respondent’s submission

7.On the other hand, Mr Kuan, who appeared for the respondent, submitted that the appeal should be allowed and the sentence should be increased.

8.Mr Kuan submitted that the Principal Magistrate had in fact adopted too low a starting point and also ignored several aggravating factors.

9.Mr Kuan submitted that according to Ngo Van Huy[3]a starting point of 12 to 15 months’ imprisonment is appropriate for a first time offender.  The sentence should be enhanced for the fact that the offence was committed at a crowded place, the appellant has previous similar records and he is a Form 8 holder.

10.Mr Kuan urged this court to exercise its power under section 119(1)(e) of the Magistrates Ordinance[4] to increase the sentence.  He submitted that there is a notice on the Form 102 warning the appellant that the court has this power if he goes for an appeal.

Discussion

11.I agree with Mr Kuan that the sentence imposed by the Principal Magistrate is too lenient.

12.The starting point adopted by the Principal Magistrate is on the low side as in Ngo Van Huy[5] the range of 12 to 15 months’ imprisonment was expressly stated by the Court of Appeal to be applicable to a “first time offender”.  The appellant is not. 

13.As submitted by Mr Kuan, the fact that the offence was committed at a crowded place should also justify an increase of 3 months’ imprisonment from the starting point.

14.Moreover, the sentence should be enhanced as the appellant is a Form 8 holder.  In HKSAR v Ali Saif[6], the Court of Appeal stated that for the offence of trafficking in dangerous drugs, the level of enhancement for this factor should not be less than 6 months.  In my view, although pickpocketing is an offence less serious than trafficking in dangerous drugs, if the offence is committed at a crowded place the enhancement should not be less than 3 months.

Conclusion

15.In the premises, I am of the view that the sentence imposed by the Principal Magistrate is too lenient.

16.Having said that however, from what I heard from the appellant at the hearing, I take the view that the appellant was not aware of the possibility that his sentence can be increased in the appeal. 

17.In the circumstances, although the appellant received a more lenient sentence than what it should be, I decide that the appellant’s appeal be dismissed and the original sentence imposed by the Principal Magistrate be maintained. 

Mr KUAN Bak On, Franco, SPP, of Department of Justice, for the Respondent.

The Appellant, acting in person.