HKSAR v. Chuluun, Batbold

HCMA820/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 820 OF 2009

(ON APPEAL FROM KCCC 4749 OF 2009)

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Before : Hon McMahon J in Court

Date of Hearing : 15 December 2009

Date of Judgment : 15 December 2009

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J U D G M E N T

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1.The appellant, a 30-year old Mongolian, was convicted on his own plea of an offence of Theft and sentenced to 6 months’ imprisonment.  He appeals that sentence on the basis that it was too severe.

2.The facts of the case were that the appellant stole two jackets (totally valued at HK$1,998) from a clothing store in Canton Road.  The store had an anti-theft device in its doorway and the labels in the jackets were intended to activate the alarm as the appellant left the store.

3.He was intercepted once he had left the store and the police were called.  The alarm at the entrance of the store had in fact worked and had alerted the staff to the theft.  The appellant had carried the jackets out of the store in a large tinfoil lined brown paper bag which was itself contained in a cloth carrier bag.  The tinfoil lining of the brown paper bag was an attempt to defeat the operation of the store’s anti-theft measures.

4.In sentencing the appellant, the magistrate said :

“3.   Upon examination, police discovered a special device inside the bag seized from the Appellant : an outer carrier contained a brown paper bag which in turn contained a concealed tinfoil lining ….  As agreed by the Defence, the said device is capable of avoiding the detection of anti-theft device in general.

…

5.   This is not a case of simple theft.  This case involved premeditated efforts to use special device, apparently intended by the Appellant, to avoid the anti-theft alarm of a shop located in the tourist district, though it turned out to be a failure …”

5.The magistrate adopted a starting point of 9 months' imprisonment and reduced that to the sentence of 6 months’ imprisonment to reflect the appellant's plea.

6.I have been referred to two cases involving thefts from clothing stores using the same method of aluminum foil lined shopping bags.  In the first case, HKSAR v Le Thi Thao, HCMA656/2009, the appellant had stolen a large amount of clothing valued at HK$22,000.  The magistrate imposed a sentence of 6 months’ imprisonment after adopting a starting point of 9 months' imprisonment and allowing for the appellant's plea of guilty.  That sentence was challenged on appeal as being too severe.  Deputy High Court Judge Geiser found that sentence (together with other sentences imposed in respect of immigration offences committed by the appellant) to be entirely appropriate. 

7.In HKSAR v Natsagdorj Munkhbayar, HCMA672/2006, the facts again involved the theft by the appellant in that case, a Mongolian national, of clothes from a clothing store with the attempted use of a foil lined shopping bag.  On this occasion, Deputy Judge Longley approved the sentence of 4 months’ imprisonment imposed by the magistrate after having taken a starting point of 6 months’ imprisonment and having allowed for the appellant’s plea of guilty.

8.In my view the use of a tinfoil lined carrier bag, or indeed the use of any device intended to defeat detection by anti-theft devices in retail stores, is an aggravating factor.  But some proportionality must exist in respect of the value of the property taken.

9.In the present case I am of the view, given the value of the clothing stolen, that an appropriate starting point of sentence was one of 6 months' imprisonment and that should be discounted to one of 4 months’ imprisonment to reflect the appellant's plea.

10.Accordingly I allow the appeal to the extent that the appellant's sentence is reduced to one of 4 months’ imprisonment.

Mr Simon Tso, SPP of the Department of Justice, for HKSAR

The Appellant in person, present