HKSAR v. Tsogbadrakh Otgon

CACC 393/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 393 OF 2013

(ON APPEAL FROM DCCC NO 476 OF 2013)

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REASONS FOR JUDGMENT

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Hon Barnes J (giving the Reasons for Judgment of the court):

Introduction

1.The applicant was the 3^rd accused in the trial.  She was jointly charged with 4 other women (1^st, 2^nd, 4^th and 5^th accused at trial) with two counts of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.The particulars of the offences were that on the 5 March 2013, at the Hong Kong Convention and Exhibition Centre (HKCEC), the five of them stole 10 diamonds at Booth No E29, the property of Motti Kahana Diamonds Ltd (MKDL) (Charge 1), and one coral chain and 30 coral beads at Booth No D02, the property of Famous Group Limited (FGL) (Charge 2).  

3.All five accused pleaded not guilty to the charges.  After a trial before District Judge Stanley Chan, the 2^nd accused was acquitted of both charges.  The applicant (together with others) was convicted of Charge 1 as charged, and was found guilty of the alternative charge of handling stolen goods in relation to Charge 2.

4.On 21 October 2013 the applicant was sentenced to 4 years’ imprisonment for Charge 1 and 3 ½ years’ imprisonment for Charge 2.  Judge Chan ordered 3 months of the sentence on Charge 2 to run consecutively to the 4 years’ imprisonment imposed on Charge 1, making a total of 4 years and 3 months’ imprisonment.

5.By a notice dated 1 November 2013 the applicant applied for leave to appeal against sentence.  On 6 February 2014, her application was dismissed by Lunn JA.  By a notice dated 13 February 2014, the applicant renewed her application for leave to appeal against sentence.  By another notice dated 18 February 2014, she applied for leave to appeal against conviction out of time.

6.At the conclusion of the hearing, we dismissed both applications and ordered the “loss of time” of 4 weeks. We indicated that we would hand down our reasons in due course, which we now do.

Prosecution case

7.The prosecution case was that 5 Mongolian ladies (including the applicant) acted in concert.  They came to Hong Kong as tourists and on 5 March 2013 attended the International Jewellery Show (the show) held at the HKCEC where they stole the jewellery items particularized in the two charges.  

8.There was no dispute that all five accused attended the show on 5 March 2013.  Closed-circuit television captured them attending Booth E29, where MKDL had jewellery on display.  After their departure staff of MKDL found 10 diamonds valued at US$20,108 missing from the Booth and reported to the police.  The police went to the Mirador Mansion in Tsimshatsui and located the applicant and her two roommates, ie 1^st and 4^th accused.  The other two accused were located elsewhere in Tsimshatsui.

9.In the room shared by the applicant and her two roommates, the police found a suitcase belonging to the applicant.  Inside the suitcase, 6 diamonds, confirmed to be the properties of MKDL, were found.  A coral chain and 30 coral beads were also found.  The coral chain and beads were later confirmed to be the properties of FGL, valued at US$68,850 and US$251 respectively.  The staff was not aware of their disappearance until 9 March 2013.

10.Immigration record showed that the applicant, 1^st and 4^th accused all entered Hong Kong on 3 March 2013 by air around the same time, whereas 2^nd and 5^th accused entered Hong Kong via Lo Wu on 28 February 2013, again around the same time.  Telephone records show the five had constant communications among them.  Fingerprint impressions lifted from some of the stolen items found inside the applicant’s suitcase matched the fingerprints of 5^th accused.

11.The applicant was interviewed under caution.  The admissibility was challenged but ruled admissible after Judge Chan adopted the alternative procedure.  The applicant claimed that she did not steal and had only attended the show with 1^st and 4^th accused in order to give them assistance.  While admitting that the suitcase was hers and someone had asked her to put items in it for safe-keeping, the applicant denied knowledge of the theft of the jewellery in question.

Defence case

12.None of the accused gave evidence.

Reasons for Verdict

13.Judge Chan did not accept the innocent explanation given by the applicant in the interview.  Judge Chan reminded himself of the applicant’s clear record and that no adverse inference could be drawn against the applicant for her election not to give evidence.  After evaluating all the evidence – including the stolen properties being found in the applicant’s suitcase, the CCTV footage, the fact that the applicant was sharing a room with some of the other defendants, the immigration and telephone records showing the link between the applicant with others, Judge Chan found the applicant (together with D1, D4 and D5) guilty of the theft of 10 diamonds (Charge 1).  As to Charge 2, Judge Chan found the applicant (together with 1^st and 4^th accused) guilty of the alterative offence of handling stolen goods.  

Applicant’s Background

14.In relation to the applicant, Judge Chan learned, in mitigation, that she had a clear record and was running a food stall in Mongolia, earning HK$5,000 a month.

Reasons for sentence

15.Judge Chan was of the view that a deterrent sentence was warranted in this case to deter perpetrators to come to Hong Kong to commit similar offences.  Judge Chan referred to the case HKSAR v Padilla Gerardo Gonzaga & Others CACC 275 of 2011 unreported in which five persons from the Philippines went to a similar jewellery show at the HKCEC and stole a diamond worth HK$251,000 odd.  The diamond was never recovered.  There was an enhancement in that case.  This Court (different constituted) said the starting point of 3 years was unobjectionable.  While finding that the trial judge was not entitled to enhance the sentence, this Court noted that there were aggravating features, namely the international element and that the offences was planned and committed by several persons.  Such aggravating factors warranted a sentence prior to discount for the mitigating features, of 4 years’ imprisonment.

16.Judge Chan took into account the international element in this case and that the crimes were well planned.  He also bore in mind that the accused were convicted after trial and no remorse was shown.  He imposed a term of 4 years’ imprisonment for Charge 1 and 3 ½ years’ imprisonment for Charge 2.

17.When Judge Chan considered the totality principle, he said “[it] would be wrong to send a message to the culprits that the more criminal wrongs they committed, the more discount in sentence they could get.”  Having considered that Charge 2 stemmed from a theft committed on the same day, he ordered 3 months of the sentence on Charge 2 to run consecutively to the 4 years’ imprisonment for Charge 1, making a total of 4 years and 3 months’ imprisonment. 

Grounds of appeal and reasons for the delay

18.In the affirmation supporting her application for leave to appeal against conviction out of time, the applicant said she wanted to appeal against sentence.  In asking the court to reassess her sentence, she pointed out that she did not steal; and that her fingerprints were not found on the stolen items.  She asked the court to examine the CCTV footage.  She also said she deeply regretted having the stolen items in her possession.  She understood it was her own fault in not pleading guilty in the magistrate’s court but that was because she did not fully understand the contents of the statements.  She asked the court to reduce the sentence imposed to one for possession of stolen goods only.  She did not give any reasons why there was a delay. 

19.The applicant put forward a total of 8 letters, 3 were dated 23, 24 and 25 December 2013 (which Lunn JA had already considered), and 5 letters dated 17, 19 and 24 February, 3 March and 23 April 2014.  The first 5 letters dealt with her grounds for appeal against sentence.  Basically the applicant said she did not steal but admitted that she had handled stolen goods.  She expressed remorse and asked for a reduction of the sentence.  She said she had never committed any offence since coming here in 2001.  She also referred to the fact that her fingerprints were not found on the stolen items and that the CCTV footage did not capture her stealing.  

20.In her letter dated 24 February 2014, she maintained that she did not steal and said she wanted to plead guilty to handling stolen goods even though she did not know about “the stuff” and had handled them without knowledge.  She also made a complaint about the interpretation service provided to her and requested for a new interpreter.

21.In her letter dated 3 March 2014, she asked the court to allow her to change her plea.

22.In her last letter, she made extensive complaints against the interpreter, accusing him of misinterpreting to her, giving a false impression of her to “the court, prosecutor, legal [counsel], and the police and [defence] lawyer”, and breaking the laws of Hong Kong (in bringing the acquitted 2^nd accused back to Hong Kong, to be present in court on 6 February 2014). 

23.Before us, the applicant confirmed that she was only seeking leave to appeal against the conviction of Charge 1 out of time.  She accepted she had committed the offence of handling stolen goods in relation to the diamonds.  She wished to have her sentence reduced on the basis that she was only guilty of two counts of handling of stolen goods.

The law relating to extension of time

24.The applicant sought an extension of time to file the notice of appeal against conviction.  Substantial reasons must be given to explain the delay before this Court would grant such an application.  The longer the delay, the more onerous is the duty on the applicant to explain.  Further, as an “unusual course” this Court would also look at the grounds of the proposed appeal to check whether, by refusing leave to appeal, we were shutting out a substantial and plainly arguable ground of appeal (see R v Wong Kai-kong & Anor [1990] 1 HKC 279, The Queen v Ip Chung Hang CACC 345/1988, HKSAR v Medina & Anor CACC 296/2007, HKSAR v W [2004] 3 HKC 376).  

Discussion re Conviction

25.The notice for leave to appeal against conviction was 3 ½ months out of time.  No reasons have been advanced on paper as to why there was such a delay.  In court the applicant merely said that she was advised by the interpreter that she had two weeks to make the application.

26.Although the applicant repeatedly claimed that she did not steal, and that she did not know her friends had put the stolen items into her bag, it must be borne in mind that a similar assertion was made when she was interviewed under caution.  That assertion was not supported by testimony and was specifically rejected by Judge Chan.

27.The prosecution case was one of “joint-enterprise”.  It matters not that the fingerprints of the applicant were not found on the stolen items, or that the CCTV did not capture her stealing.  On the evidence before Judge Chan, in particular the undisputed evidence that the applicant went to the show with the others and were present at the booth where MKDL had the jewellery on display, and that 6 of the 10 diamonds found missing from the booth were found inside the applicant’s suitcase 2 days later, the irresistible inference to be drawn was that the applicant acted in concert with the others to steal the jewellery from MKDL.  It matters not whether she was the person who did the actual stealing.

28.Regarding Charge 2, again on the evidence before Judge Chan, and in particular the finding of the coral chain and beads inside the applicant’s suitcase, Judge Chan was fully entitled to find the applicant guilty of handling those stolen items.  The applicant might have regretted in not tendering a guilty plea, it is however too late to ask this Court to permit her to change her plea. 

29.There are no merits whatsoever in the grounds of appeal against conviction.  We refused to grant leave to the applicant to appeal against conviction out of time.

Discussion re Sentence

30.In relation to the sentence, the applicant put forward the same grounds which had been carefully and thoroughly considered by Lunn JA.  As Lunn JA had said (at para 23 of the judgment) “The judge’s stipulation of a starting point taken to sentence for Charge 1 of 4 years’ imprisonment is entirely consistent with the approach adopted by this Court in Padilla Gerardo Gonzaga & Others.  Here, the same factors of aggravation identified in the earlier judgment were present, namely a pre-planned theft by a group of persons who came to Hong Kong to commit the offences.”  The 4 years’ imprisonment imposed on Charge 1 was reasonable and fair, and not manifestly excessive at all.

31.As indicated by Judge Chan, and endorsed by Lunn JA, Charge 2 involved a different victim, albeit that the offence occurred on the same day and in the same general area, it was entirely proper to order 3 months of the 3 ½ years’ imprisonment to run consecutively to the 4 years’ imprisonment imposed in Charge 1.

32.There are absolutely no merits in the grounds of appeal against sentence and the application was dismissed. 

Loss of Time

33.Section 83W(1) of the Criminal Procedure Ordinance, Cap 221 provides:

“The time during which an appellant is in custody pending the determination of his appeal shall, subject to any direction which the Court of Appeal may give to the contrary, be reckoned as part of the term of any sentence to which he is for the time being subject.”

34.After we dismissed the applications, we invited the applicant to address us why we should not order the “loss of time” in the present case.  While the applicant claimed that she was not informed by the interpreter of such a risk, she said she would respect the Court for whatever order we made.  

35.We were of the view that both applications were totally unmeritorious, particularly the renewed application for leave to appeal against sentence.  Lunn JA gave full reasons why he refused the application.  The applicant then made a renewed application, advancing the same grounds.  Valuable judicial time has been wasted.  Having considered the gravity of the offence and the length of sentence (4 years and 3 months), we were of the view that it was proper to order loss of time of four weeks.  We therefore ordered that four weeks of the time during which the applicant has been in custody pending the determination of her appeal shall not be reckoned as part of the term of the sentence to which she is for the time being subject.

Mr Simon Tam SC, SADPP of the Department of Justice, for the respondent

The applicant appeared in person