HKSAR v. Nayiga Shamim

HCMA 937/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 937 OF 2009

(ON APPEAL FROM ESCC 5161/2009)

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BETWEEN

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Before: Hon Mackintosh J in Court

Date of Hearing:  6 January 2010

Date of Judgment:  6 January 2010

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J U D G M E N T

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1.The appellant pleaded guilty at Eastern Magistrates’ Court to a single charge of “Theft” and was sentenced to 9 months’ imprisonment.

2.The theft was a pickpocketing offence committed in the early hours of 24 October 2009. An expatriate police inspector engaged in a police operation targeting offences such as this, pretended to be drunk and asleep at the junction of Jaffe Road and O’Brien Road in Wanchai. Five $100 notes had been placed into his shirt pocket and were on view. He was being watched, and indeed videotaped, by other officers. The appellant was seen to approach him and remove all the notes from his pocket. She was immediately arrested and confessed to the theft. The $500 was recovered. So this was a successful “sting” operation, targeting anyone who was willing to prey on an apparently drunken man.

3.The appellant is a visitor from Uganda. She is 30 years of age and has no convictions in Hong Kong. The magistrate took a 15 month starting point which he reduced by a third to reflect the plea, and then by a further month for what were said to be humanitarian reasons.

4.Today, the appellant has supplemented her written grounds of appeal with an account of her family and social problems in Uganda, including the loss of a number of family members, one of whom in particular she refers to, being her sister who appears to have drowned. She said she came to Hong Kong via China to buy some goods with which to start a business, with an amount which was initially US$5,000, given to her by her uncle, which was spent. She says she was under threat of sexual abuse and also under the threat of death from a family member, when back in Uganda, and at one point, it appears she feared going back to Uganda.

5.Thus she spent all the money given to her to buy goods on her living expenses here in Hong Kong and she decided to steal “from a man whom I thought was drunk” in order to support herself. She says she was tempted having seen the money in the pocket of the man and then committed the offence. She says that the sentence that was imposed upon her was too long and asks this Court to reduce the term as an act of leniency.

6.Sentences for pickpocketing offences are imposed in accordance with the guidelines set by the Court of Appeal in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, which set a 12 to 15 month starting point for cases without particular aggravating circumstances. The starting point taken for sentence in this case was at the top of the range. Given all the facts of this case, I am not satisfied that it was necessary to start at the top – I judge this case came more properly into the middle of the appropriate range, that is, 13½ months imprisonment. Sentences do not need to be either 12 or 15 months. It is for the sentencer to judge where the case fits into the sentencing bracket set by the Court of Appeal. The target of the pickpocketing here was what the appellant thought to be a drunken man. A term of imprisonment at the top of the 12-15 months range is usually more appropriate as a starting point for pickpocketing in places where innocent members of the public are at higher risk of such attack.

7.In any event, the appellant is entitled to a discount of one third for her plea of guilty.

8.The discount given by the magistrate here was in excess of the one third normally accorded for a plea of guilty with a clear record. There was no justification for such further discount. The fact that the appellant is a foreigner did not justify any further reduction as the magistrate acknowledged in his reasons for sentence. Although the appellant has explained what she described in effect as her personal/family circumstances, those matters do not justify any further reduction in sentence. On a 15 month starting point, the sentence ought to have been 10 months’ imprisonment, not 9 months.

9.Taking a starting point of 13½ months and reducing it by one third produces a discounted sentence of 9 months. That means the proper sentence was in fact imposed to this case, even if by a slightly different route.

10.Therefore there is no legitimate complaint against the length of the sentence imposed and I must dismiss the appeal.

Mr Robert Lee, Senior Public Prosecutor, for the Respondent

The Appellant, in person