HKSAR v. Sandagdorj Altankhuyag and Another

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 941 of 2012)

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J U D G M E N T

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Hon Macrae J (giving the judgment of the court):

1.On 18 January 2013, the 1^st appellant was sentenced on his own plea by HH Judge Longley to imprisonment for 20 months on a joint charge of theft.  The 2^nd appellant was sentenced on the same charge after a contested trial to 30 months’ imprisonment. 

2.On 3 April 2013, the 2^nd appellant was refused leave to appeal his conviction by a Single Judge, although both appellants were granted leave to appeal their respective sentences.  Although the 2^nd appellant, who was originally unrepresented, was granted an extension of 14 days within which to lodge notice of appeal against sentence, he was 3 days out of time.  However, it seems that there were administrative and practical difficulties in getting the relevant information and material to and from the appellant for the purposes of his legal aid application.  In any event, Mr Lo for the respondent takes no issue on the failure to abide by the Single Judge’s order; and we accordingly grant the 2^nd appellant leave out of time.

The facts

3.At shortly after 2:00 am on 22 September 2012, the two appellants were spotted by plainclothes police officers walking through Lan Kwai Fong in Central.  The 1^st appellant went up to the doorways of certain bars in the vicinity, while the 2^nd appellant remained outside looking around.  When they arrived at La Dolce Vita 97 Bar, situated at No 9, Lan Kwai Fong, the 2^nd appellant pointed inside the bar following which the 1^st appellant went inside and took a seat near a woman who was sitting with her handbag on a stool behind her.  After a few minutes, the 1^st appellant came out of the bar and rejoined the 2^nd appellant.  After talking to each other for between 10 and 20 seconds, both men then went into the bar.  They manoeuvred themselves into such a position near the woman that the 1^st appellant was able to take the woman’s handbag without her noticing and leave the bar with the 2^nd appellant.  Police officers immediately moved to intercept them and the handbag was retrieved from under the 1^st appellant’s jacket which he had folded over his arm.  Both appellants were arrested.

4.The handbag, which was subsequently identified by its owner, contained, amongst other things, her United States passport, her Hong Kong Identity Card, four credit cards, an iPhone and some cash.

5.It later emerged that the 1^st appellant, a Mongolian national, had crossed the border into Hong Kong as a tourist at 8:36 pm on 21 September 2012; in other words, less than 5 and a half hours before he was first observed acting furtively with the 2^nd appellant in Lan Kwai Fong.  He had no prior convictions in Hong Kong.

6.The 2^nd appellant, also a Mongolian national, was a torture claimant and thus permitted to remain in Hong Kong by virtue of a recognisance issued by the Director of Immigration.  Although there was no official record of his most recent entry into Hong Kong, the 2^nd appellant claimed in his evidence at trial to have been in Hong Kong for about two years.  During previous documented visits to Hong Kong, he had committed three offences of theft for which he had served terms of imprisonment.

The judge’s sentencing approach

7.The judge was concerned about a number of aggravating features in this case.  Firstly, the offence was committed at night in a busy entertainment and tourist area of Hong Kong.  Statistics were placed before him showing that in 2012 just over 20% of reported theft crime in Central district, an area extending from Arsenal Street in the East, to the Macau Ferry Pier in the West, to the Peak in the South, occurred in Lan Kwai Fong.

8.Secondly, the appellants were acting in concert, which not only suggested a degree of planning and premeditation but was also designed to make it easier for them to avoid detection.

9.Thirdly, the judge inferred from the fact that the 1^st appellant had arrived in Hong Kong a few hours earlier, that he had entered the territory in order to commit theft.  The judge had in fact indicated to the 1^st appellant’s counsel during mitigation that the evidence would oblige him to draw such an inference unless the appellant wished to give evidence and persuade him otherwise.  The appellant declined to give evidence.

10.Fourthly, the judge considered that, although it could not be said of the 2^nd appellant that he had entered Hong Kong in order to commit crime, nevertheless he had committed three previous offences of theft for which he had been to prison.

11.Accordingly, the judge adopted a starting point in the case of both appellants of 2½ years’ (or 30 months’) imprisonment.  He passed the full term upon the 2^nd appellant but discounted the sentence in respect of the 1^st appellant by one third for his plea, resulting in a sentence of 20 months’ imprisonment.

The grounds of appeal

12.Ms Chow, who appears on behalf of both appellants, does not take issue with the aggravating features identified by the judge.  The gravamen of her submission is that, even allowing for those aggravating factors, a starting point of 2½ years’ imprisonment was manifestly excessive.  She submits that if one applies the guidelines in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, one could not arrive at a starting point of 2½ years’ imprisonment; and, furthermore, that those authorities subsequent to Ngo Van Huy where such a starting point has been approved can all be distinguished.  Accordingly, she submits that the starting point for sentence in this case should not have exceeded 27 months’ imprisonment.

Discussion

13.We have been helpfully taken through a number of decisions of this Court by Ms Chow.  The cases where a starting point of 30 months’ imprisonment was approved, but which Ms Chow seeks to distinguish on their facts, were HKSAR v Doan Van Do (unrep) CACC 286/2004, HKSAR v Liao Mei and others (unrep) CACC 432/2004, HKSAR v Pham Ngoc Trinh (unrep) CACC 439/2004, HKSAR v Tan Hong Sheng (unrep) CACC 238/2005 and HKSAR v Chan Mei Yee (unrep) CACC 447/2009.  To this list might be added HKSAR v Ho Minh Cong (unrep) HCMA 547/1999, a case which preceded, but was approved in, Ngo Van Huy.

14.It is not necessary to analyse each of those cases in order to decide whether the aggravating features that were present in them were more significant or less significant than those in the present case. As this Court has repeatedly said, the facts in each case will be different and the significance to be attached to a particular aggravating feature will vary depending on the circumstances of the individual case.  Suffice it to say, each of the cases referred to were cases possessed of a number of aggravating features which justified an increase from the basic sentence laid down in Ngo Van Huy, namely, 12 to 15 months’ imprisonment after trial for a first offender.  We are more concerned with whether or not those aggravating features that were present in this case justified, in the exercise of his discretion, the starting point of 30 months’ imprisonment adopted by the trial judge.

15.The Court in Ngo Van Huy were not purporting to lay down an exhaustive list of what might be considered aggravating features in cases of pickpocketing nor were they endeavouring to set down prescribed values by which a sentence should be increased for any particular aggravating feature.  These assessments are best left to trial judges.

16.In this particular case, Ms Chow rightly does not quarrel with the fact that there were a number of matters which the judge could and did properly take into account in aggravation of the basic sentencing guideline.  These we have already adverted to.  However, we feel that two particular matters stand out from the facts and circumstances of this case. 

17.The first is that within 5½ hours of the 1^st appellant’s arrival in Hong Kong as a tourist, he had teamed up with another Mongolian national in order to embark on a serious crime targeted at an area where locals and tourists are known to frequent in considerable numbers.  It is one thing to commit crime whilst visiting Hong Kong: it is quite another to come to Hong Kong in order to commit crime.  Yet that is precisely what the judge rightly found the 1^st appellant had done.  In terms of the relative significance to be given to this factor, we need do no more than repeat the words of Yeung JA (as he then was) in Tan Hong Sheng, at para 26:

“The fact that the applicant and his co-accused committed the offence on the very next day after they arrived in Hong Kong from the mainland, contrary to the applicant’s submission, is indeed a most serious aggravating factor as rightly identified by the judge.”

18.It might also be observed that the applicant in Tan Hong Sheng, like the 1^st appellant before us, had a clear record. The Court went on to hold, at para 27:

“We see no reason not to follow our earlier decisions in endorsing a starting point of 2½ years’ imprisonment despite the fact that the applicant does not have any criminal record in Hong Kong.”

19.The fact that this is “a most serious aggravating factor” in respect of the 1^st appellant does not absolve the 2^nd appellant of its effect.  Indeed, we think the judge was somewhat generous in saying that the 2^nd appellant had not entered Hong Kong in order to commit theft, if by that he meant that the 1^st appellant’s intention to come to Hong Kong to commit crime did not also taint the 2^nd appellant.  For it would defy belief if the 2^nd appellant did not know of, or was not party to, the 1^st appellant’s purpose in coming to Hong Kong earlier that evening, which led them both to be in Lan Kwai Fong together a matter of hours later.  The element of planning and deliberation necessary is obvious.

20.The second matter which stands out from the facts of this case concerns the 2^nd appellant.  He was a torture claimant who, like many in his position, was not lawfully in Hong Kong but was nevertheless allowed to remain at liberty by virtue of a recognisance issued by the Director of Immigration whilst his claim was being processed.  Yet, despite the hospitality extended to him by the authorities and people of Hong Kong, he chose to abuse that privilege by targeting an area well known as a tourist destination, and one that is frequented by significant numbers of tourists and locals alike, in order to steal.

21.Where someone in the position of the 2^nd appellant deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered, and when that crime also has the effect of tarnishing this City’s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime.

22.We do not say that someone sharing the 2^nd appellant’s status would aggravate his position in every case or in every crime.  Obviously, there are crimes committed by refugees or torture claimants which do not affect the community at large or have any significant impact on Hong Kong’s reputation.  However, in this case, not only did the 2^nd appellant team up with a fellow countryman within hours of his arrival in Hong Kong when he must have known and been privy to the fact that the only purpose and intention of the 1^st appellant in coming to Hong Kong was to commit theft but the target was to be a well-known and highly populated tourist destination.  If the renown of Lan Kwai Fong had not reached the 1^st appellant’s ears, it would certainly have been known to the 2^nd appellant.  In our view, this was a serious aggravating feature which we would add to those identified by the trial judge.

23.In all the circumstances, we consider that there is no merit in these appeals against sentences which were both richly deserved. However, before departing from this case, we would comment that there appears to be a tendency sometimes to regard guideline cases as laying down immutable tariffs which can then only be increased by defined increments for certain identified aggravating features which have been established in other cases with different facts.  It seems to us that appeals then descend into a minute assessment of the comparative value placed on the aggravating factor by different courts on different facts, which invariably leads to an invitation to tinker with a sentence.  As we have said, the values to be placed on different aggravating features are best assessed by the trial judge.  

24.Moreover, as we have just demonstrated, the categories of aggravating features in this area are not closed.  Nor should 30 months’ imprisonment be interpreted as an impenetrable ceiling for this offence.  In this connection, it is worth remembering the words of Patrick Chan J (as he then was) in Ho Minh Cong, which were specifically endorsed by Ma CJHC (as he then was) in Ngo Van Huy, at 8D-E:

“We take this opportunity to indicate that in our view, because of their seriousness, organised crimes of this nature including group pickpocketing, even without international ramifications, might in future properly attract a starting point of at least 2½ years imprisonment”. (Emphasis supplied)

25.These appeals are dismissed.

Mr Francis Lo, SADPP of the Department of Justice, for the respondent

Ms Monica Chow, instructed by John M. Pickavant & Co, assigned by the Legal Aid Department, for the appellants