HKSAR v. Sandagdorj Altankhuyag and Antoher

CACC 45/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 45 OF 2013

(ON APPEAL FROM DCCC NO. 941 OF 2012)

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BETWEEN

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J U D G M E N T

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1.The 1^st and 2^nd applicants were charged with theft in the District Court. The particulars alleged that on 22 September 2012, at La Dolce Vita 97 Bar (“the Bar”) at No 9 Lan Kwai Fong, Central, Hong Kong, they stole the handbag of a female customer. The 1^st applicant was found holding the handbag underneath his jacket when he was apprehended by the police. He is a Mongolian passport holder and arrived in Hong Kong as a visitor just 5 ½ hours before the offence was committed. He pleaded guilty to the charge before Deputy District Judge Longley and was sentenced to 20 months imprisonment, the judge having adopted a starting point of 30 months.

2.The 2^nd applicant is a torture claimant from Mongolia and has been in Hong Kong for two years.  He was with the 1^st applicant when they were stopped by the police.  He admitted he was with the 1^st applicant but denied knowledge of or involvement with the theft committed by the latter.  He was convicted after trial and was sentenced to 30 months imprisonment.

3.The 1^st applicant applied for leave to appeal against his sentence and the 2^nd applicant applied for leave to appeal against his conviction.  I will deal with the application to appeal against conviction first.

4.The case of the prosecution rested on the evidence of PC 3892 (“PW1”).  His evidence, which was set out in paras 3 to 8 of the Reasons for Verdict, may be summarised as follows.  PW1 observed the 1^st and 2^nd applicants outside the Bar and the 2^nd applicant pulled the arm of the 1^st applicant with his left hand and pointed towards the inside.  The 1^st applicant nodded and went into the Bar and sat three seats away from the victim who had her handbag on another stool, while the 2^nd applicant walked to the pavement outside adjacent to the Bar.  The 1^st applicant then came out of the Bar and chatted with the 2^nd applicant.  They then walked to the bar area of the Bar and stood about a foot away from the victim.  The 2^nd applicant looked at the 1^st applicant and turned his head to the direction of the victim’s handbag, he then turned towards the 1^st applicant and turned back to the handbag with a nod.  The 1^st applicant nodded, approached the stool with the handbag and took it.  He patted the left arm of the 2^nd applicant with the handbag and both then walked up Lan Kwai Fong at a quick pace.

5.The 2^nd applicant, who was legally represented at the trial, gave evidence in his defence.  He said he had taken four friends to Lan Kwai Fong that evening.  After leaving his friends and when he was on his way home, he received a call from the 1^st applicant whom he had known when they were young.  The 1^st applicant asked for his help as the 1^st applicant had lost his friends in Lan Kwai Fong.  The 2^nd applicant walked back to Lan Kwai Fong, met the 1^st applicant at a taxi stand and both turned into Lan Kwai Fong.  As it was raining, the 2^nd applicant was holding open an umbrella in his left hand and had his right arm around the 1^st applicant’s shoulders.  The 1^st applicant entered the Bar to look for his friends while the 2^nd applicant walked to a nearby convenience store.  The 1^st applicant later approached the 2^nd applicant and suggested they go back to the top of the street.  The 1^st applicant entered the Bar again but the 2^nd applicant did not as he received a call on his phone from a friend in Mongolia.  After finishing the call, the 1^st applicant came out of the Bar, dialled on the 1^st applicant’s phone and gave the phone to the 2^nd applicant telling the 2^nd applicant if any of the 1^st applicant’s friends should answer the call, the 2^nd applicant should ask where they were.  The 2^nd applicant put the 1^st applicant’s phone to his ear to wait for an answer while the 1^st applicant walked down the steps behind the 2^nd applicant.  As there was no answer, the 2^nd applicant re-dialled the number.  Later, he saw the 1^st applicant walking back up the street so he joined the 1^st applicant.  They walked a short distance when they were stopped by the police.

6.The judge analysed the evidence and considered the evidence of PW1 with particular caution, in view of an allegation made by the 2^nd applicant’s counsel that PW1 was found to have lied by a magistrate in a similar theft case.  The judge considered the case file in the magistracy proceedings, in which the magistrate found there was no case to answer.  The judge was satisfied that the magistrate did not make a finding that PW1 was not telling the truth in that case.  As for PW1’s evidence in the present case, the judge found nothing in that officer’s evidence that caused him to have the slightest doubt about his truthfulness.  He was satisfied PW1’s evidence as to his observations of the 2^nd applicant that night is honest and accurate.  He pointed out there was a shift in the 2^nd applicant’s explanation as to why he was with the 1^st applicant that night.  He also found the 2^nd applicant’s explanation wholly implausible.  Nor did he believe the reason the 2^nd applicant was standing outside the Bar was to receive a phone call from someone in Mongolia who just happened to call him at that hour in the early morning.  And he saw no reason why, having dialled the number, the 1^st applicant should have given his phone to the 2^nd applicant and did not speak to his friends and ask where they were.  He could attach no weight to the 2^nd applicant’s evidence.  He was satisfied the 2^nd applicant gave an implausible account of events to cover up his involvement with the 1^st applicant in the theft of the handbag.

7.In support of his application for leave to appeal against his conviction, the 2^nd applicant, who is not legally represented, made submissions in writing by letter dated 22 January 2013, in his notice of application dated 1 February 2013 and by letter dated 11 March 2013.  He supplemented his written submissions with oral submissions today.

8.He sought leave to adduce additional evidence being (1) the room reservation and payment record of his friends in Hotel Casa; (2) the footages of the CCTV camera in the area of the Gucci shop on No 15 Queen’s Road Central; and (3) the footage of the CCTV camera located in the interview room No 7 of the Police Station of the Central District.

9.The relevance of the additional evidence is peripheral, as none of the additional evidence was concerned directly with the incident inside the Bar or in the vicinity of the Bar at the material time.  Under section 83V(1) of the Criminal Procedure Ordinance, Cap 221, the Court of Appeal may, if it thinks necessary or expedient in the interests of justice, order the production of any document, exhibit or other thing the production of which appears necessary for the determination of the case, and order any witness who would have been compellable in the proceedings to attend for examination.  It does not appear to me the requirements of s 83V(1) would be satisfied for the Court of Appeal to exercise its discretion to admit the additional evidence.

10.In his submissions to this court, the 2^nd applicant repeated his evidence before the judge.  He claimed he was unjustly treated in that the judge had taken into consideration his two previous convictions of theft to find him guilty of the present charge.  This is incorrect.  The judge was informed of his previous convictions after finding the charge proved and referred to the previous convictions only in the Reasons for Sentence.

11.There is nothing of substance in the submissions to support his contention that the judge was wrong to accept the evidence of PW1, such as the assertion that the victim had no idea how her handbag had gone missing, that PW1 had lost the umbrella which the 2^nd applicant was holding, that PW1 had drawn an incomprehensible sketch of the location to implicate the 2^nd applicant, or that PW1 could not have apprehended the applicants within 2 minutes at the place where they were stopped.

12.I decline to give leave to the 2^nd applicant to appeal against his conviction, as it does not appear to me to be reasonably arguable grounds that the conviction was unsafe or unsatisfactory.

13.I turn to consider the 1^st applicant’s application for leave to appeal against sentence.

14.The judge took a starting point of 30 months and gave the 1^st applicant the usual 1/3 discount for pleading guilty.

15.In adopting a starting point of 30 months, the judge took into account these aggravating features: the theft was committed at night in a busy entertainment area and major tourist attraction; statistics showed that Lan Kwai Fong accounted for just over 20% of reported theft crime in Central District in 2012; the 1^st applicant committed the theft with the 2^nd applicant; and the 1^st applicant entered Hong Kong to commit theft.

16.I was referred by the prosecution to HKSAR v Ngo Van Hui [2005] 2 HKLRD 1, in which the Court of Appeal gave sentencing guidelines for pick pocketing and regarded a sentence of 12 to 15 months imprisonment after trial as appropriate for a first time offender without aggravating features. In that case, after taking into account aggravating features (the defendant’s appalling previous record for theft and that the offence was committed in a crowded area), the starting point of 15 months was increased by 12 months.  The defendant was given the 1/3 discount for plea of guilty, reducing the term from 27 to 18 months and an enhancement of 1/3 was made under s 27 of the Organized and Serious Crimes Ordinance, Cap 455 (“OSCO”).  This brought the overall sentence to 24 months.

17.In the present case, there was no enhancement under OSCO.  I have reservations if the starting point of 30 months, i.e. 15 months plus another 15 months, after taken into account the aggravating features, is manifestly excessive.

18.I would grant leave to the 1^st applicant to appeal against his sentence.

19.The 2^nd applicant indicated he also wished to apply for leave to appeal against his sentence out of time.  I would grant leave to him to do so, give him leave to appeal against his sentence and extend time to him to give a Notice of Appeal within 14 days from today.

The 1^st Applicant appeared in person

The 2^nd Applicant appeared in person

Ms Irene Fan SPP, of the Department of Justice, for the Respondent