HKSAR v. Erdenetuya, Gendenravjaa

HCMA 453/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 453 OF 2011

(ON APPEAL FROM KCCC 1618/2011)

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BETWEEN

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Before: Hon Beeson J in Court

Date of Hearing: 2 August 2011

Date of Judgment: 2 August 2011

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J U D G M E N T

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1.The Appellant was convicted on her own plea on 3 charges of Theft and was sentenced by Magistrate David Dufton to a total of 8 months’ imprisonment. She appealed against sentence on the grounds that it was too severe.

2.All three offences took place on consecutive days at the Duty Free Shop in Tsim Sha Tsui.  High value brand name items were taken and each incident was recorded on the CCTV system.

3.When stopped after the 3^rd offence, the Appellant was carrying a stolen handbag and her daughter was wearing stolen sunglasses.  The Magistrate found that on the 1^st offence, the Appellant’s handbag, which was lined with aluminium foil, was used in the commission of the offence, but it was not clear whether it had played a part in the 2^nd and 3^rd Charges.  The use of such a bag is an aggravating factor in the offence of shoplifting.  (see HKSAR v Chuluun Batbold HCMA 820/2009).

4.In mitigation the Magistrate was told that the Appellant’s husband was an English teacher in Mongolia running a school which brought in HK$3,000 approximately per month.  Apart from the Appellant’s pleas, there was no other valid mitigation put forward before the Magistrate.

5.The Magistrate took a starting point of 6 months on Charge 1 and gave ⅓ discount, the sentence imposed was 4 months.  Because there was some doubt whether the especially adapted handbag had been used during the misappropriations on Charges 2 and 3, the Magistrate very fairly took a lower starting point of 4.5 months for each of Charges 2 and 3.  He gave ⅓ discount on each of Charges 2 and 3 and the Appellant was sentenced to 3 months on each charge.

6.Wholly consecutive sentences were warranted in this case, but to take account of totality, the Magistrate ordered that the sentences on Charges 1 and 2 be served consecutively and that one month of the sentence on Charge 3 be consecutive also.  The remaining 2 months of the sentence on Charge 3 were ordered to run concurrently.  The total period of sentence was 8 months’ imprisonment.

7.When considering sentence, the Magistrate looked at precedent cases which indicated that 6 to 9 months was an appropriate starting point on one charge depending on the value of the items stolen. Exacerbating features would include – multiple offences or offenders; high value goods; use of tools or equipment; or items adapted to circumvent security or antitheft devices.

8.Having considered the relevant factors, I am satisfied that the Magistrate imposed entirely proper sentences for each of these offences.

9.Before me today, the Appellant complained the sentence was too long.  She said that she had learned a lesson and asked for leniency as she wishes to go home.  However, I am satisfied that the Magistrate’s sentences were neither excessive in length nor wrong in principle.

10.Accordingly the appeal against sentence is dismissed.

Ms Ng Mee Wah, Memi, Senior Public Prosecutor of the Department of Justice, for the Respondent

The Appellant in person