HKSAR v. Myagmarjav Enkhzul

CACC 250/2019

[2020] HKCA 142

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 250 OF 2019

(ON APPEAL FROM DCCC 102 OF 2019)

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Before: Hon McWalters JA in Court

Date of Hearing: 3 March 2020

Date of Judgment: 3 March 2020

Date of Reasons for Judgment: 3 March 2020

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REASONS FOR JUDGMENT

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1.On 1 August 2019, the applicant appeared in the District Court before Deputy District Judge LC Cheng (“the judge”), and pleaded guilty to the following charges:

(i)      one count of “Theft”, contrary to section 9 of the Theft Ordinance, Cap 210 (Charge 1);

(ii)     three counts of “Obtaining property by deception”, contrary to section 17(1) of the Theft Ordinance, Cap 210 (Charges 2 – 4); and

(iii)    two counts of “Attempted to obtain property by deception”, section 17(1) of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200 (Charges 5 – 6).

2.She was sentenced by the judge to a total sentence of 26 months’ imprisonment and now applies for leave to appeal against her sentences. 

3.At the hearing of the application I refused it and said I would hand down my reasons for doing so in due course.  This I now do.

The charges

4.On 31 October 2018, the applicant stole by finding three credit cards from the victim (Charge 1).  They were an American Express Card (AMEX), a Mastercard and a VISA card with a total credit limit of HK$578,000.  Between 1741 hours and 1759 hours the applicant successfully used these credit cards to purchase five iPhones at a total cost of HK$59,095 at the Apple Store in the IFC Mall (Charges 2 – 4).

5.Shortly after completing these transactions, the applicant went to a TUMI store in the IFC Mall and attempted to purchase a piece of luggage priced at HK$6,890 with the AMEX card, but this card was rejected (Charge 5).  She then presented the Mastercard credit card to the salesperson for payment (Charge 6).  The salesperson, feeling suspicious, did not process any payment with this card and requested another salesperson to contact the police.  The applicant asked for the return of this card and left the shop at around 1828 hours.  The salesperson who contacted the police followed the applicant and pointed her out to police. 

6.At the time when she was intercepted by the police, the applicant was holding the Mastercard credit card in her right hand though it was then in a damaged condition.  The five iPhones were found in the rucksack she was carrying.  In response to police enquiry, she claimed that she had found the credit card in the IFC Mall and had used it to purchase the iPhones in her rucksack.  When a body search was conducted of her, the stolen VISA credit card was found concealed beneath her bra.  She claimed that she had found this card on the 1^st floor of the IFC Mall.  The stolen AMEX credit card was never found.     

The judge’s Reasons for Sentence 

7.The judge accepted the applicant’s mitigation that she committed the offences by finding the credit cards on the floor of the IFC Mall and then opportunistically using them to purchase goods.  However, he said that the applicant’s conduct was not just a simple case of “theft by finding” as the applicant committed the series of offences within a very short period of time.  The judge also took into account that as the total credit limit of the three stolen cards exceeded HK$500,000, the potential loss to the victim was great and concluded that the offences called for a deterrent sentence.

8.The judge, having considered the mitigation letters by the applicant and her mother, accepted that she was truly remorseful. He allowed her the full one-third discount for her plea of guilty but said her personal background and her mother’s deteriorating health would not warrant any further discount of her sentence.

9.The judge had regard to HKSAR v Li Chi Yat[1] and HKSAR v Ben Salem Hassen[2], which were both “stolen credit card” cases, and imposed on the applicantthe following sentences:

(i)      For Charge 1 the judge adopted an initial starting point of 9 months’ imprisonment, and discounted it by one-third for the applicant’s plea of guilty to one of 6 months’ imprisonment.

(ii)     For each of Charges 2 to 6, he adopted an initial starting point of 30 months’ imprisonment, which he then reduced to 20 months’ imprisonment for the plea of guilty.

(iv)    Applying the totality principle the judge decided that the appropriate overall sentence should be 26 months’ imprisonment after the one-third discount.  He achieved this by ordering that:

(a)   2 months of Charge 3 should be served consecutively to Charge 2;

(b)   2 months of Charge 4 should be served consecutively to Charges 2, and 3;

(c)   2 months of Charge 5 should be served consecutively to Charges 2, 3 and 4; and

(d)   for the rest of the charges, all the sentences should run concurrently.

The applicant’s grounds of appeal

10.The applicantwas unrepresented in the leave application.  In her Form XI, she complained only that the overall sentence of 26 months’ imprisonment was “too long” but in a letter dated 25 November 2019 she made a number of complaints.  In respect of Charge 1, she argued that there was a lack of evidence against her, such as video footage of, or eye witnesses to, her act of stealing.  Concerning Charges 2 to 6, she submitted that her sentence was excessive and inappropriate as compared to the sentences imposed in HKSAR v Van Leuven Alan Edward[3]where thedefendant was sentenced to a total of 28 months’ imprisonment for 11 offences of dishonesty involving forged credit cards.

11.The applicant submitted that the judge should have passed a more lenient sentence as she had no prior criminal conviction, and she was preoccupied with her family problems which had left her with no choice but to commit the present offences.       

12.At the hearing of the application she handed in to the court a further letter, together with other materials, in which she expressed her remorse and deep regret for what she had done and referred to the difficult circumstances, including ill health, that her family in Mongolia were facing.  She was anxious for them as they needed her and she missed not being with her baby who was born whilst the applicant was serving her sentence.

Discussion

13.On countless occasions the Court of Appeal has stated that a complaint that other defendants in other unrelated cases have received more lenient sentences than the applicant does not assist an appellate court in determining whether the sentence imposed on the applicant is manifestly excessive.  Each case is decided on its own facts and the relevant consideration before me now is whether the sentence passed on this particular applicant is proper.  There is nothing in the case to which the applicant referred me which would indicate any error by the judge in her case or any excessiveness in the sentence that he imposed. 

14.In respect of Charge 1, the applicant’s complaint appeared to arise from her misunderstanding of the basis of her conviction which was not that she took the credit cards from the person of their owner but rather that having found them as lost property she dishonestly appropriated them.  In respect of the sentence for this charge, the initial starting point adopted by the judge was appropriate and not manifestly excessive.  In any event the sentence for it was made wholly concurrent with the other sentences.

15.In respect of Charges 2 – 6, the judge correctly applied the principle laid down in HKSAR v Li Chi Yat that a starting point of 3 years’ imprisonment or less is appropriate for small-scale credit card offences like the present and I consider that a starting point of 30 months’ imprisonment for each charge is not manifestly excessive in the circumstances of this case.

16.The only remaining issue is whether the total sentence is excessive.  Given the number of dishonesty offences committed by her within a short period of time, the total value of the properties involved and the potential loss to the victim, I do not regard as reasonably arguable the complaint that the total sentence is manifestly excessive. Furthermore, the judge cannot be criticised for passing partially consecutive sentences on the applicant in order to reflect her true culpability.  Indeed he could have ordered that part of the sentence for Charge 1 should have been served consecutively.

17.The personal circumstances of the applicant and her family, as sympathetic as they may be, do not constitute a good reason for the court to extend to the applicant any greater discount other than the one-third discount for her plea of guilty.  Effectively, the applicant was throwing herself upon the mercy of the court.  However, there was nothing of such an exceptional nature about her personal circumstances as would justify the intervention of the Court of Appeal.  

Disposition

18.For these reasons I refused the applicant leave to appeal her against sentences.  I reminded her of her right to renew her application before the Court of Appeal and also reminded her that should she do so, and should the Court of Appeal find no merit in her renewed application, the Court of Appeal has the power to order loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221. 

Ms Eva Chan SPP, of the Department of Justice, for the respondent

The applicant appeared in person

[1] [2019] HKCA 458

[2] CACC 45/2017, unreported, 19 October 2017.

[3] DCCC 110/2013, Reasons for Sentence, 23 April 2013