HKSAR v. Saaral Enkhbayar

HCMA 262/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 262 OF 2006

(ON APPEAL FROM ESCC 565/2006)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 10 May 2006

Date of Judgment: 10 May 2006

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J U D G M E N T

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1.The Appellant had pleaded guilty in the Magistrate’s Court to one charge of theft.  The facts show that the Appellant had pick pocketed the female victim’s mobile phone from her handbag as she was crossing the extremely busy Sogo intersection in Causeway Bay.

2.The time was 7:30 p.m. and the Appellant was seen committing the offence and intercepted with the mobile phone after a short chase.

3.The learned Magistrate in assessing sentence very properly referred to the case of R v Vy Van Kien and Another reported [1991] 1 HKCR 422 where it was recommended that the starting point for pick pocketing offence should be 12 to 15 months imprisonment. 

4.The learned Magistrate decided to take a starting point of 12 months and, having deducted the sentence by one third for the plea, sentenced the Appellant to 8 months imprisonment.

5.The learned Magistrate observed in his Reasons for Sentence that, on reflection, he should have adopted a higher starting point because this offence took place in a crowed tourist area.  And I would add that this an area well known for pick pocketing offences.

6.The Appellant appeals against his sentence on the ground that he considered it to be too long and that he suffers from health problems.  He says he is not used to the asian diet provided in the prison as he is more used to a western diet and he is also concerned about the health of his mother. 

7.I see from the record that the Appellant is 22 years old and came to Hong Kong as a visitor and he was on a 14-day visa when he committed this offence on his seventh day in Hong Kong

8.The ground advanced by the Appellant that he has health problems and dietary inconvenience are not proper grounds to reduce the sentence.  The Correctional and Services Department has good medical facilities and the Appellant can see the counsellor in the Correctional Services Department about his dietary needs.

9.As for the health of his mother, it is unfortunate, but the Appellant has only himself to blame.  As for leniency, the learned Magistrate has been very lenient in taking such a low starting point.  It pick pocketing in a crowded tourist area is an aggravating factor which would increase the starting point of sentence however, the learned Magistrate did not adopt that as an aggravating factor in this case which is therefore a leniency shown to the Appellant.  I cannot see that the sentence is at all manifestly excessive and so the appeal is dismissed.

Ms Winnie Lam, Government Counsel of Department of Justice, for the Respondent

Appellant in person