HKSAR v. Nankinga Margret

HCMA 897/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 897 OF 2009

(ON APPEAL FROM ESCC 4766/2009)

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Before: Hon Mackintosh J in Court

Date of Hearing: 7 January 2010

Date of Judgment: 7 January 2010

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J U D G M E N T

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1.The appellant, a visitor to Hong Kong from Uganda, pleaded guilty at Eastern Magistracy to 3 offences: soliciting for an immoral purpose (charge 1), breach of condition of stay (charge 2), and theft by pickpocketing (charge 4).  Charges 3 and 5 related to breach of condition of stay and soliciting by another woman.  The appellant was sentenced to 2 months’ imprisonment concurrent on each charges 1 and 2 and 8 months’ imprisonment consecutive on charge 4.  The total was therefore 10 months.  She appeals against her sentence.

2.The police set up an operation targeting prostitutes soliciting in the streets of Wanchai.  An officer posed as a drunken tourist in the early hours of the 3 October 2009.  He was approached in the street by the appellant who offered sexual services for $2,000.  She embraced the officer and, whilst she did so, she reached round him and removed $1,000 in cash from his rear trousers pocket.  The other defendant also became involved in offering sexual services to the officer together with the appellant, and the two of them were arrested.

3.The magistrate was told by the duty lawyer on behalf of the appellant that she had come to Hong Kong to buy some goods having been given quite a substantial quantity of US dollars by her boss; and quite a lot of the money had been lost.  As a consequence, she ended up behaving in the manner which she admitted by her guilty plea.

4.The appellant, aged 25, was said to be a clerk for a mobile phone company in Uganda and she has no previous convictions in Hong Kong.  She says today that the sentences imposed by the magistrate were too long overall, and asks this court to reduce the term of imprisonment.

5.The concurrent sentences imposed by the magistrate for breach of condition of stay and soliciting, which were reduced from 3 months on each to 2 months, to reflect the plea of guilty, were in line with the terms of imprisonment commonly imposed in all magistracies for such offences: so it is impossible to criticise them.  As the magistrate here pointed out, such terms for soliciting were upheld by Deputy Judge Wright in HKSAR v. Wang Fang Ling, HCMA 635/2002; and the respondent in written submissions has referred to other authorities, such as HKSAR v. Xie Chun-mei [2004] 1 HKLRD 865, which related to breach of condition of stay; and actually, my own past experience as a magistrate is that such sentences of imprisonment are the norm.

6.As to the theft charge, this was a pickpocketing involving an apparently drunken man and one who was therefore vulnerable to such dishonesty.  As it happens, this is the second appeal that I have dealt with this week involving a female visitor from Uganda, pickpocketing an apparently drunken male in the Jaffe Road area.  That other appellant was dealt with in this court by way of a sentence of 9 months’ imprisonment, upon a plea of guilty, equivalent to 13½ months before the discount for the plea.  That starting point is in the middle of the 12 to 15 months range of sentence laid down by the Court of Appeal for pickpocketing offences without any particular aggravation, in a case called Ngo Van Huy [2005] 2 HKLRD 1.  Such a starting point is appropriate for an offender who targets a man who is believed to be drunk and believed to be more susceptible to having his pocket picked: that is exactly what this appellant did, reaching round him in an apparently non-hostile manner to rifle his back pocket.

7.In fact, the sentencer in this case took a starting point at the lower end of the bracket set by the Court of Appeal.  That 12 months starting point was reduced by the conventional one-third for the plea of guilty and the appellant’s other mitigation.  So there can be no complaint whatsoever about that sentence in my judgment.

8.The next question is whether the sentences should have been concurrent or consecutive.  It was clearly correct to direct the soliciting and breach of condition of stay terms to run together because the conduct involved in the commission of each offence was more or less the same. However, the pickpocketing was an entirely distinct and additional dishonest act.  In my judgment, there is really no room for argument that in principle that sentence had to run wholly consecutively to the two months for the other offences.  The magistrate considered the totality of sentence and rightly concluded that the overall term was proper and was not excessive for the appellant’s criminal conduct.

9.There is no merit to this appeal and it must be dismissed.

Mr Martin Hui, Senior Public Prosecutor of the Department of Justice, for the Respondent

Appellant, appears in person