HKSAR v. Nyamtogtokh Uuriintuya

HCMA 31/2022

[2022] HKCFI 2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 31 OF 2022

(ON APPEAL FROM FLCC 1588 OF 2021)

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Before:  Hon Campbell-Moffat J in Court

Date of Hearing:  30 June 2022

Date of Judgment:  30 June 2022

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J U D G M E N T

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Introduction

1.The appellant is a Mongolian national and Form 8 holder. She has a criminal record in Hong Kong, which includes three offences of Theft (by pick-pocketing), contrary to s9 of the Theft Ordinance, Cap 210. On 3 January 2022, the appellant pleaded guilty to a further offence of Theft (by pick-pocketing) before Mr Daniel Tang, Magistrate and was sentenced to a period of imprisonment of 16 months. The appellant now seeks to appeal that sentence as being too severe.

2.In his Reasons for Sentence[1], the learned magistrate noted that the appellant had stolen a wallet from an unzipped shoulder bag of the victim whilst the victim was shopping in a supermarket. Her actions were caught on CCTV and she was later arrested. In mitigation, he noted that the appellant had a son in Hong Kong who was 18 months old and that the appellant now wished to return to Mongolia.

3.In sentencing, the Court took account of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, which, significantly, stated that a period of imprisonment of between 12-15 months was appropriate for a first time offender in pick-pocketing cases. However, there were aggravating features including the previous offending; the fact that the current offence had been committed shortly after release from previous offending and that the appellant was a Form 8 holder. He was lenient in adopting a starting point of 12 months’ imprisonment, but then added 6 months’ imprisonment to mark her re-offending; 3 months for the offending soon after she was released and 3 months for offending whilst being a recognizance holder. There being no mitigation sufficient to reduce that sentence further, the appellant was given a 1/3 discount for her plea and sentenced to 16 months’ imprisonment.

Grounds of Appeal

4.There are no grounds of appeal before the Court. The appellant appeared in person and submits that the sentence is too long.

Respondent’s Submissions

5.Ms Go, on behalf of the respondent submits that the sentence is in line with authority in the circumstances of the case and asks the court to dismiss the appeal.

Discussion

6.The appellant is 35 years of age. She came to Hong Kong from Mongolia, where she left behind her a husband and two sons. She is a torture claimant. Since coming to Hong Kong she has given birth to another son who is very young. Her criminal record in Hong Kong dates back to April 2020.

7.The magistrate rightly considered the appellant’s previous offending to be an aggravating feature. Whilst it is not a substantial number of convictions, it forms a clear pattern of offending behaviour. The Court was entitled to take into consideration the appellant’s previous offending history and to increase the starting point to reflect that behaviour, not to punish the appellant twice for the offence at hand but to mark the fact that this appellant has learned nothing from previous sanctions and a greater deterrent is necessary in order to dissuade her from offending again: R v Simon Tam HCMA 480 & 490/1996; HKSAR v Chan Pui-chi [1999] 2 HKLR 830. Indeed, the magistrate could not have been criticised for adopting a greater initial starting point than he in fact did as the guideline starting point for a first time offender under HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 is an immediate custodial sentence of 12-15 months. The appellant is clearly not a first time offender.

8.Theft by pick-pocketing is an offence society rightly condemns, involves a significant degree of inconvenience, a direct invasion of privacy and brings about adverse publicity to Hong Kong. It is therefore one which rightly attracts a heavy penalty even for a first time offender, especially as its prevalence has increased in recent years. The question before this court today is whether a sentence of 16 months’ imprisonment in the circumstances of this case is too severe.

9.There is a considerable amount of discretion placed upon a sentencing judge to balance the various aggravating and mitigating features of a case in order to obtain a fair and just final sentence. In this case, the learned magistrate took a lenient approach to his initial starting point but then added 6 months to reflect his condemnation of the appellant’s recidivism making a sentence of 18 months’ imprisonment at that stage of his determination. That would be a 50% uplift on the starting point. However, had the learned magistrate taken a starting point of 15 months, which would have been entirely proper in the circumstances, and then added a further 3 months to mark the recidivism, that would have been an uplift of just 20% and would still have resulted in a term of imprisonment of 18 months without taking into account any other aggravating features.

10.The appellant’s behaviour was exacerbated by the fact that she committed the current offence shortly after a period of custody of 14 months for exactly the same type of offending. This is a different issue from repeat offending. The learned magistrate was entitled, looking at the principle of totality, to add a further 3 months’ imprisonment for that separate aggravating feature to mark the appellant’s complete and obvious disregard for the laws of Hong Kong and to deter others from following suit.

11.Given that the appellant was also a guest of Hong Kong as a Form 8 holder and was supported by both ISS and, no doubt, our social and health services, it was wholly proper to add a further 3 months for her offending as a holder of a recognizance. Indeed, a greater enhancement of up to 6 months was available to the court in accordance with HKSAR v POLO Navarro Juan Carlos [2019] HKCA 1053. As was stated in HKSAR v Ali Saif [2018] 6 HKC 19:

“If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants.

Conclusion

12.This appeal will be allowed to the extent that the initial starting point for sentence for someone who is not a first time offender for theft by pick-pocketing should be one of 15 months’ imprisonment. A further 3 months will be added to mark the aggravating feature of the fact this is the fourth offence by his lady for this crime in just two years. Three months will be added to that sentence to mark the fact that this offending took place very shortly after her release from a substantial sentence, and with totality in mind, a further 3 months’ imprisonment will be added to that sentence to mark the fact that this offending was committed by a recognizance holder. That makes a total sentence of 24 months, which, after her plea of guilty, is a term of imprisonment of 16 months.

13.There will be no order as to costs.

Ms Lisa Go, SPP (written submissions), and Ms Kathy Sum, PP of the Department of Justice, for the respondent

The appellant appeared in person