HKSAR v. Narankhuu, Baljinnyam

HCMA 238/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 238 OF 2015

(ON APPEAL FROM KTCC NO 1333 OF 2015)

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JUDGMENT

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Introduction

1.The appellant appeals a sentence of 6 months’ imprisonment which was imposed upon him by Mr Ernest Lin, Principal Magistrate at Kwun Tong Magistracy, upon his plea of guilty for the offence of theft.  The basis of his appeal is that the sentence is too severe. 

2.The particulars of the offence were that on 21 March 2015 he stole three jackets from H&M Department store at Wong Tai Sin, Kowloon (the store).  The retail value of the three jackets was $1,297.

Brief facts

3.On the day in question the appellant was observed by a security guard at the store acting suspiciously holding an empty bag.  He then left the store without triggering any anti-theft alarm.  The security guard observed however that a bag that he was carrying was full and therefore intercepted the appellant outside the store.  He checked his bag and found three jackets belonging to the store.  The police were called and he admitted to them that he had committed the offence and apologised for what he had done.  He said he took the items for himself and his friends.  It was observed that the bag that he was carrying had several layers of tin foil lined inside it.

Appellant’s mitigation

4.The appellant is a 20 year old Mongolian male. He said he is a student in his second year at a tertiary institution in Mongolia studying a course concerning medical equipment.  He said he lives with his mother and younger sister.  His father has passed away.  He said he also works as a waiter to help support his family.  He said that he has been to Hong Kong on previous occasions for a holiday during summer in 2006, 2007 and 2012. On the day of the offence he had entered Hong Kong from Mainland China in the morning and planned to return later that night.  He said he did not steal the items to sell but were for himself and his friends. 

Magistrate’s reasons for sentence

5.The Magistrate concluded that the tin foil lining of the bag was a means to avoid activating any security device at the store.  He therefore found that the appellant had planned to go to the store to steal and equipped himself with the bag in order to ensure he would not be detected.  He sentenced the appellant on the basis that he had committed a planned and well prepared theft.  He distinguished this case from a spur‑of‑the‑moment or opportunistic shop theft and noted in particular that the appellant had equipped himself with a device specifically designed to avert the surveillance system of the store in order to steal.  He noted that shop theft in the area had become prevalent and was a matter of concern to the community which therefore called for a specific and general deterrent sentence.  He adopted a starting point of 9 months’ imprisonment which he reduced by one-third for the appellant’s guilty plea to 6 months’ imprisonment.  

6.The Magistrate explained that the sentence he imposed was based on the level of sophistication used by the appellant in carrying out the shop theft and the need for a general deterrent sentence because of the prevalence of this type of criminal activity in the area.

Magistrate’s knowledge of the local conditions

7.Magistrates deal with the bulk of the cases in our criminal justice system and observe almost on a daily basis the trends and prevalence of particular criminal activity that can be a factor when sentencing offenders.  The Magistrate in this case explained that shop theft had become a problem in the area and was being perpetrated with increased sophistication and prevalence.  He properly brought into the sentencing process his knowledge and experience of the local conditions and issues, and there is no reason for me to interfere with the sentence imposed. 

Sentencing for shop theft

8.I have been supplied with various authorities dealing with sentences imposed in the Magistrate’s Court for shop theft where a starting point in the range of 6 to 9 months’ imprisonment is adopted for a case involving a degree of sophistication and premeditation.  It would also seem that in these cases that the magistrates have variously taken into account the value of the property involved, the multiplicity of offences and/or offenders, previous similar offending, and use of tools or equipment including items adapted to circumvent security or anti-theft devices.  See HKSAR v Chuluun Batbold, HCMA 820/2009, 15 December 2009, unreported, per McMahon J at paragraphs 6 to 8; HKSAR v Serjgavaa Munkh-od, HCMA 505/2010, 23 July 2010, unreported, per Mackintosh J at paragraph 11; HKSAR v Tungalag Bayarsaikhan, HCMA 302/2011, 27 May 2011, unreported, per Line J at paragraphs 3 and 4; HKSAR v Erdenetuya Gendenravjaa, HCMA 453/2011, 2 August 2011, unreported, per Beeson J at paragraph 7; HKSAR v Javzmaa Dalaitsetseg, HCMA 454/2011, 5 August 2011, unreported, per Beeson J at paragraph 13. 

9.Beeson J in Erdenetuya Gendenravjaa at paragraph 7 explained that the precedent cases in relation to sentencing for shoplifting “indicated that 6 to 9 months was an appropriate starting point on one charge depending on the value of the items stolen.  Exacerbating features would include – multiple offences or offenders; high value goods; use of tools or equipment; or items adapted to circumvent security or antitheft devices”. 

Items used to defeat anti-theft measures an aggravating factor

10.From the cases mentioned, what is apparent is that there have been a number of cases coming before the courts where the offender has used a bag lined with tin foil as a means to defeat the operation of a retail store’s anti-theft measures.  The use of such a bag is an aggravating factor in the offence of shoplifting. 

Conclusion

11.I am of the view that the starting point of 9 months’ imprisonment was one that the Magistrate was entitled to take because the facts reveal deliberate premeditated stealing.  The resultant sentence of 6 months’ imprisonment is therefore appropriate. 

12.Accordingly, the appeal against sentence is dismissed. 

Ms Mickey Fung, SPP of the Department of Justice, for the HKSAR

The appellant in person