HKSAR v. Nyamdoo Zoljargal

HCMA 583/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 583 OF 2014

(On appeal from KCCC No 3187 of 2014)

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J U D G M E N T

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1.On 15 September 2014, the appellant pleaded guilty to a single charge of theft before Mr Abu B bin Wahab, a permanent magistrate sitting at Kowloon City Magistracy. He was sentenced to 12 months’ imprisonment.

2.The appellant now appeals his sentence on the basis that it was too severe.  He also claimed today that he was under the influence of alcohol at the time of the offence.

3.The brief facts of the case are as follows.  At about 3:10 pm, on 23 August 2014, a middle‑aged woman was shopping at “Innisfree”, which is located at Tsim Sha Tsui, Kowloon.  The appellant stole a mobile phone from the side pocket of the victim’s backpack.  When she realised what had happened, the appellant immediately fled.  The victim chased after him and intercepted him inside an adjacent shop.  The appellant said “No, No” to the victim.  The victim then noticed the stolen phone on the floor of the shop and reported the matter to the police.  The police viewed the CCTV footage at “Innisfree” and confirmed that the appellant had stolen the phone from the victim.  The appellant was then arrested.  The mobile phone was valued at $5000.

4.The appellant is 29 years old.  He is a Mongolian living in Hong Kong.  I am informed that he made an application as a torture claimant.  He is unemployed and has five previous convictions, of which three are related to theft.  In 2010 and 2012, he was sentenced to 15 months and 12 months’ imprisonment respectively for pickpocketing, and in 2011, he was sentenced to 6 months’ imprisonment for theft.  In 2014, he was also sentenced for 4 months’ imprisonment for procuring another person for an unlawful sexual act by false pretences and breach of a suspended sentence for criminal damage.

5.The magistrate applied HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 which provides that a starting point of 12 to 15 months immediate imprisonment should be imposed for a first time offender of pickpocketing.  The magistrate held that the appellant’s previous convictions were an aggravating factor, particularly in light of his previous transgressions for pickpocketing.  The magistrate thus adopted a starting point of 18 months’ imprisonment which he reduced by one third for the appellant's guilty plea.  He accordingly sentenced the appellant to 12 months’ imprisonment.  See also HKSAR v Pham Bich Thuy [2010] 2 HKLRD 1177; HKSAR v Xiao Ping [2013] 2 HKLRD 378.

6.There is no basis for any complaint by the appellant for the sentence that was imposed.  It was in accordance with the sentencing guidelines for an offence of this type and appropriately took into account as an aggravating factor that the appellant was a repeat offender for pickpocketing and theft.  The sentence was not a day too long and there is no basis whatsoever to interfere with the sentence imposed by the magistrate.  The appeal against sentence is accordingly dismissed.

Mr Prakash L Daryanani, SPP of Department of Justice, for HKSAR

The appellant in person