HKSAR v. Ikhbayar,Gansukh

HCMA452/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 452 OF 2012

(ON APPEAL FROM KCCC 2001 OF 2012)

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J U D G M E N T

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Background

1.The appellant was charged with the offence of attempted theft.  He pleaded not guilty and was convicted after trial.  The sentence was 12 months’ imprisonment.

2.The appellant sought to appeal against both the conviction and sentence.

The prosecution case

3.At the trial, the prosecution had called one witness to testify (PW1).  She said that on the material day, when she was at the Mong Kok Station escalator, she noticed that the appellant, who was then standing behind her, had inserted his hand into her handbag (P-1).  She was then carrying P1 on her right shoulder.  There were personal items insides, including a mobile telephone.  She explained that the handbag had an open top without any zipper or fastening device.

4.PW1 said when she turned and saw the inserted hand, the appellant was the only person standing behind.  PW1 asked the appellant what he was doing, he then very quickly withdrew his hand and walked away.  She followed the appellant and kept asking him what he was doing.  There was no clear reply.  They both boarded the train and when they arrived at the Kowloon Tong Station, PW1 made a report to the police officer.

5.The police officer arrested the appellant for the offence of attempted theft.

Defence case

6.The appellant elected not to give evidence. However, the defence case was that there was no insertion of the hand, and as the appellant was standing close behind PW1, the proximity of his hand to the handbag could have caused a misunderstanding.  In any case, the stationary hand position did not support an intention to steal.

The assessment of evidence

7.The magistrate had considered fully the evidence including, inter alia, the following matters:

(a)  PW1’s description of the appellant’s appearance and apparent age;

(b)  the appellant did not dispute he was behind PW1 at the material time and they were together until the police appeared; and

(c)   PW1’s demonstration and testimony of the appellant’s hand position in light of the contents of her witness statement.

8.The magistrate had further discussed the issues of whether the hand position in relation to the handbag could have been accidental, and the intention of the appellant.  The magistrate refused to accept the defence submission that the hand could have been inserted into the bag by accident. He also rejected the argument that the situation may not be consistent with any intention to steal.

9.The magistrate found that : the appellant had inserted his hand into PW1’s handbag with the intention to steal from PW1. The appellant was therefore convicted.

Sentence

10.Regarding the sentence of imprisonment, the magistrate explained : (paras 17 and 18 of the Statement of Findings and Reason for Sentence)

“17. Sentence

This is a case of ‘pickpocketing’ (or, to be more precise, an attempt at this). HKSAR v Ngo Van Hay (2005) 2 HKLRD 1 set down sentencing guidelines for such offences (see also, for example, HKSAR v Liu Lin-feng CACC 206/2011). An immediate term of imprisonment of 12 to 15 months is appropriate for first offenders after trial. It is an aggravating factor for the offence to be committed at crowded places like the race course or the Mass Transit Railway (MTR). I consider the guidelines applicable also to attempts at ‘pickpocketing’. It lies ill in the mouth of an offender to say that his sentence should be reduced because he had not been successful. In the present case, there is the aggravating factor that the offence was committed in a crowded place, the escalator of Mong Kok MTR station.

18.   The case papers indicate the Defendant to be 20 years of age.  He hails from Mongolia and is not a Hong Kong resident.  Despite his relative young age, the fact that the Defendant does not reside in Hong Kong means that Detention Centre or Training Centre Orders are not practical or feasible (because of the inability to supervise the Defendant on his release).  In such circumstances and despite the presence of the aggravating factor mentioned above, I decided on a sentence of 12 months immediate imprisonment.”

The grounds of appeal

11.The appellant was not legally represented for the appeal.  In addressing the court in person, he stated that he still deny the offence, as he had not tried to steal anything.  He said there could be a misunderstanding between the prosecution and the defence laywer.  He asked to be allowed to return to Mongolia sooner as his father had passed away and no one was there to look after his two sisters.  The appellant added that he did not give evidence at the trial, but he was willing to testify now.

Assessment

12.The Statement of Finding showed that the magistrate had consider all the relevant principles, including the appellant’s clear record, his right not to testify and the burden/onus of proof.

13.The magistrate had made a careful assessment of PW1’s evidence, paying particular attention to the alleged discrepancies mentioned by the defence.  The magistrate had further gone into the detail about the issues raised by the defence such as the possibility of an accident.

14.The main point of the trial was whether the appellant had inserted his hand, or part of it, into PW1’s handbag, and if he did, what was his intention? 

15.After evaluating the evidence, the magistrate accepted PW1 to be a credible witness.  He found that the appellant had inserted his hand into the bag in such circumstances, that it could not have been accidental.  He concluded that the appellant had the intention to steal from PW1.

16.The findings were made based on the magistrate’s own observation of the witness and the assessment of the evidence.  This court must recognize that it did not enjoy the advantage of seeing and hearing PW1 in person.  Looking at the evidence as a whole, I cannot say that the magistrate’s conclusion was unsafe or unsatisfactory.

17.Concerning the sentence, I accept the respondent’s submission that the magistrate’s decision on the starting point was in accordance with precedents (see HKSAR v Ngo Van Hay (2005) 2 HKLRD 1 and HKSAR v Liu Lin Feng, CACC206/2011).  

18.The offence had taken place in the Mong Kok MTR, which would usually be a crowded place.  The magistrate could have made an upward adjustment of the starting point but he had not done so.  The magistrate had already been lenient with the appellant.

19.What the appellant had submitted to this court did not constitute any reason to reduce the sentence.

Result

20.There being no meritorious grounds, the appeal must be dismissed (both conviction and sentence).