HKSAR v. Ganbold Munkh Erdene and Another

CACC 315/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 315 OF 2014

(ON APPEAL FROM DCCC NO. 435 OF 2014)

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J U D G M E N T

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1.The 1^st and 2^nd applicants seek to leave to appeal against the sentences of imprisonment imposed on them on 4 September 2014 by District Court Judge Casewell, following their convictions of a single count of theft on 22 April 2014, contrary to section 9 of the Theft Ordinance, Cap. 210. In that application, they are represented by Mr Norton Pang. The 1^st applicant, who was convicted after trial, also seeks to appeal against his conviction, whereas the 2^nd applicant pleaded guilty to the charge. In his application in respect of conviction the 1^st applicant is unrepresented. The 1^st applicant was sentenced to 24 months’ imprisonment and the 2^nd applicant to 16 months’ imprisonment.

The Facts

2.The applicants are Mongolian nationals, who were visiting Hong Kong at the time of the offence.   Shortly after 4 a.m. in the morning of 22 April 2014 the applicants were seen by police officers to follow a young couple who were looking for a taxi to return home after spending the evening in the hostelries of Tsim Sha Tsui.  It was the prosecution case that the 1^st applicant reached out with his left arm and removed a wallet from a female handbag carried on his shoulder by the male of the couple.  He handed the wallet to the 2^nd applicant who, when confronted by the police officers, threw the wallet on the floor.  The wallet contained $380.

Reasons for Sentence

3.In his Reasons for Sentence, the judge noted that the 1^st and 2^nd applicants were aged 32 and 31 years respectively and were both of “clear record”.  Then, he said of the starting point for sentence :

“ ... a simple pickpocketing case can range between 12 to 15 months imprisonment for a person of clear record and where more than one person acts in concert with a degree of professionalism, starting points of up to 30 months imprisonment have been adopted by the courts.”

4.Next, he said that there were aggravating factors in the commission of the instant offence, namely that the applicants acted together and the decision to steal involved planning and acting in concert.  He also noted that the offence had occurred in an area in which nightclubs were located and that it was to be expected that patrons of those nightclubs would be found, so that “to a certain extent they were preying on those people”.  On the other hand, he acknowledged that the area could not be described as busy.  In the result, he stipulated “an overall starting point” of 24 months’ imprisonment, which sentence he imposed on the 1^st applicant.  Affording the 2^nd applicant a discount of one-third from the starting point taken for sentence, to reflect his plea of guilty, the judge imposed a sentence of 16 months’ imprisonment.

Grounds of appeal against sentence

5.In the grounds of appeal against sentence advanced on behalf of the applicants it was contended simply that the starting point of 24  months’ imprisonment stipulated by the judge was manifestly excessive, with the result that the sentences of imprisonment imposed on the applicants were also manifestly excessive.  In written submissions, it was submitted that the judge erred in failing to stipulate a starting point for sentence and in failing to stipulate the additional sentence that he determined to impose to reflect each of the identified aggravating features in the commission of the offence.  Relying on the analysis of this Court in its judgment in HKSAR v Chiu Suet Yee, Angel [1]in respect of the approach to sentence in respect of pickpocketing, it was submitted that the appropriate initial starting point for sentence was 12 months’ imprisonment.  Then, it was submitted that the aggravating factors of the fact that the applicant acted together with a degree of planning and preyed upon persons making their way home, having patronised hostelries, were appropriately reflected by increases in sentence of 3 months’ imprisonment in respect of each of those two factors.  So, it was contended that the overall starting point for sentence of the applicants ought to have been 18 months’ imprisonment, rather than 24 months’ imprisonment.

6.In response to an enquiry from the Court as to the position taken in respect of the application for leave to appeal against sentence as opposed to the appeal overall, in a letter to the Court dated 23 December 2014 Mr Franco Kuan, on behalf the respondent, informed the Court that he took no objection to the grant of leave to appeal against sentence.

Conclusion

7.Clearly, there are arguable grounds of appeal against sentence and the realistic approach of the respondent to the grant of leave to appeal against sentence is entirely appropriate.  Pursuant to paragraph 6A(4) ofPractice Direction 4.2 - ‘Criminal Appeals to the Court of Appeal’ the parties were informed that it was not necessary for them or their representatives to attend the hearing. The applications for leave to appeal against sentence are granted.

Mr Franco Kuan, SPP of the Department of Justice, for the respondent

Mr Norton L. T. Pang, instructed by Bernard Wong & Co, assigned by Director of Legal Aid, for the 1^st and 2^nd applicants (for sentence)