HKSAR v. Ganbold Uuganbaatar

HCMA 13/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 13 OF 2015

(ON APPEAL FROM KCCC 4130 OF 2014)

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REASONS FOR JUDGMENT

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1.The appellant was convicted by a magistrate[1] after trial of one count of theft contrary to section 9 of the Theft Ordinance Cap 210 and sentenced to 15 months’ imprisonment. He appealed against conviction and sentence. At the end of the hearing I dismissed the appeals and now hand down my reasons for so doing.

2.This was a pickpocket case.  The victim,Ms Lee was a tour guide.  She was at the material time inside the ‘Duty Free’ shop at Mody Road, Tsim Sha Tsui.  She was carrying a handbag inside within which contained her wallet.

3.While queuing at the customer service centre and facing the counter, Lee noticed that the applicant was standing closely behind her on her left.  When she almost reached the counter, she felt someone bump against her back.  Feeling her handbag suddenly being jolted, Lee turned around and saw that her handbag was open.  She saw her wallet in the appellant’s right hand. 

4.Lee asked the appellant “what are you doing?” and the appellant replied saying something she could not understand.  She did not hear the appellant say the word “sorry” in English.  Had it been said, Lee stated that she could have understood it as she knew English.

5.The appellant then dropped the wallet back into her handbag.  He took a step back.  Lee said “Stop, pause, call the police.”  The appellantthen walked away.  He went to the glass door entrance.  A man from another tour group intercepted him and then the security guard and the police arrived respectively.  Lee identified the appellantin the presence of the police officers.

The defence case

6.The appellant elected to testify but called no other witnesses. His case was summarized in the Reasons for Verdict:-

“16. The defendant elected to give evidence. He is 30 years old and has a clear record. He is a visitor to Hong Kong. He intended to leave Hong Kong on the next day, ie. 23 November, 2014.

17. The thrust of the defendant’s case is that he did not know what had happened until the time he arrived at the police station where he had the assistance of a Mongolian interpreter. He did not understand why he was intercepted. He did not know why he was arrested by police officers.

18. The defendant denied that he had opened the handbag, had inserted his hand into the handbag and had stolen the wallet. He denied touching the wallet at any time. He further denied any body contact with Lee.

19. The defendant agreed that he was present at the scene at the material times. When he entered into the duty free shop, there was a group of people. At that time, his right hand was holding a coat. He noticed that Lee stood in front of him, and there were many people surrounding him.

20. The defendant explained that when he went through the crowd his coat might bump into Lee’s handbag. He confirmed that his body did not touch Lee at any time.

21. The defendant testified that at that juncture, Lee turned to him and the defendant asked “What happened?” Then Lee started to say something in her own dialect which the defendant could not understand. The defendant simply said “sorry” in English and went to the door to leave. When he was walking to the doorway, he heard Lee shouting. Then a man wearing green shirt (“unknown man”) intercepted him. The defendant’s hands were put at his back. One of the hands of the unknown man squeezed the defendant’s neck. At that time, the defendant saw Lee again. Lee was waving her wallet and speaking Punti to a group of people. The defendant told the court that it was the first time he saw the wallet.

22. When the defendant was brought back to the security room, he asked the security guard to review the CCTV footage. The defendant said he could only speak a few English words. He simply said “TV” and used two fingers to draw a square in the air.

23.  The defendant did not understand what happened until the time he was taken to the police station where an interpreter was arranged for him.”

Grounds of appeal

7.The appellant was not legally represented at the appeal.  Some of his submissions had previously been raised at his trial before the magistrate by his counsel.  

8.The appellant raised the following grounds of appeal : The magistrate:-

a)  erred in finding Lee was an honest witness,

b)  was biased and was on the side of the prosecution,

c)  erred in not believing the appellant’s evidence,

d)  erred in failing to find that the appellant was innocent and

e)  if CCTV footage of the incident had been adduced into evidence at the trial it would have shown that the appellant was innocent.

Discussion

9.In considering the evidence the magistrate correctly identified that this was a one-on-one situation and reminded himself of the need to be cautious when assessing the evidence of Lee.  He also properly directed himself on the various issues including the good character of the applicant and the standard of proof.  Additionally, the magistrate specifically stated that no adverse inference was drawn from the appellant’s flight. 

10.He found Lee to be an honest and truthful witness.  He found that her evidence was candid and not exaggerated as could be seen by her admission that Lee did not see when her handbag was opened.  He rejected the appellant’s evidence.  One of the reasons he gave were as follows:

“The defendant’s version defies common sense. The defendant told the court that he did not know what happened until the time the interpreter was present in the police station. His testimony is illogical. One cannot help but ask why did the defendant ask the security guard for showing CCTV footage to him. The defendant must know that he was being alleged as a thief before he made that demand.”

11.The magistrate’s analysis of the evidence was logical, reasonable and fair.  He did not err in assessing the credibility of the witnesses.  The conclusion the magistrate reached in his assessment of evidence was one which he was entitled to reach.

12.It can be seen from the appellant’s counsel’s closing written submissions and the transcript at the trial that reference was made to the Duty Lawyer Service writing on behalf of the appellant to the Duty Free Shop for the CCTV recording.  The Duty Free Shop responded that due to the angling of the camera in the shop nothing was captured of the incident.  At the closing submission, the magistrate rightly pointed out that there was no evidence before the court of any request of the CCTV recording.  Counsel for the appellant thus withdrew her submissions regarding matters of the CCTV.

13.At the hearing of the appeal Mr Leung for the respondent confirmed that shortly after the incident, during investigation, the police viewed the CCTV and confirmed that nothing was captured on the recording due to the location and position of the camera in the shop.  Thus the recording was not seized.  The recording has since been deleted. 

14.There was no CCTV recording adduced at the trial, nor at the hearing of the appeal.  The CCTV recording was not a matter for consideration or assessment at the trial or at this appeal despite the suggestion of the appellant that the recording would have shown his innocence.  The magistrate’s verdict was based solely on the evidence and credibility of Lee.  There were no reasons to disturb the magistrate’s evaluation of the evidence.  

15.The magistrate was fully entitled to reach the verdict he did.  The appeal against conviction was accordingly dismissed.

Appeal against sentence

16.The appellant submitted that the sentence was manifestly excessive and should be reduced on humanitarian grounds.  The humanitarian grounds were that since the commencement of his incarceration he suffers from insomnia, he has lost an excessive amount of weight, his wife and children do not know of his conviction and imprisonment, therefore he is desperate to go home and be reunited with them.

17.The magistrate correctly applied the case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 which provides that a starting point of 12 – 15 months’ immediate imprisonment should be imposed for a first time offender of pickpocketing.

18.The magistrate accepted that the appellant was a visitor from Mongolia and not a Hong Kong resident.  In committing this offence the appellant was of clear record, worked alone, no weapon was used, the victim suffered no loss and the shop was a crowded place. 

19.The magistrate adoption of a starting point of 12 months’ and his addition of 3 months’ imprisonment for the aggravating factor of committing the pickpocketing offence at a crowded place was proper. 

20.The dire affects or unpleasant consequences the appellant or his family suffers as a result of conviction and imprisonment are not exceptional circumstances to justify or reduce an otherwise wholly appropriate sentence. 

21.The sentence was neither wrong in principle nor manifestly excessive. Accordingly the appeal against sentence was dismissed. 

Mr Leung Yuk Hang, Gary, PP, of the Department of Justice, for the respondent

The appellant appeared in person