HKSAR v. Zorigtbaatar, Ganbat and Another

HCMA 305/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 305 OF 2015

(ON APPEAL FROM ESCC 872 OF 2015)

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REASONS FOR JUDGMENT

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1.The first and second appellants appealed against their sentence of 8 months’ imprisonment upon them respectively. At the end of the hearing I dismissed their appeals. I now hand down my reasons for so doing.

2.The sentences were imposed upon the appellants after their guilty pleas.  The 1^st appellant pleaded guilty to one count of Theft (Charge 1) while the 2^nd appellant pleaded guilty to two similar counts (Charge 2 and 3) before a magistrate[1].  They were thefts by pickpocketing.

Brief facts

3.Shortly before 0105 hours on 21 March 2015, police officers conducting anti-crime patrol saw the 1^st and 2^nd appellants acting in a suspicious manner in the Lan Kwai Fong area.  Thereafter, the police officers kept them under observation.  Whilst observing them an officer saw the 1^st appellant pick a mobile phone (“stolen property 1”) (valued at HK$1,000) from the rucksack of a British female.  The police officers immediately intercepted the 1^st and 2^nd appellant.  The mobile phone (“stolen property 1”) was recovered from the trousers pocket of the 1^st appellant (Charge 1).

4.The 2^nd appellant was searched.  Upon bodily search, two mobile phones (“stolen property 2 and 3”) (valued at HK$7,000 and HK$3,500 respectively) and two Master Cards in the name of ‘Tracey-Ann MCClurg’ (“stolen property 4 and 5”) were found in the 2^nd appellant’s possession.

5.The two female owners of the stolen property found on the 2^nd appellant were later located.  They identified the property as their personal belongings which went missing between 2300 hours of 20 March 2015 and 0015 hours of 21 March 2015 whilst they were at Lai Kwai Fong (Charge 2 and 3).

Mitigation

6.The 1^st and 2^nd appellants have similar backgrounds. They are Mongolian; both aged 27 years and are of clear record.  They worked together as car repair mechanics earning about HK$2,000 in their home country Mongolia.  They both received university education.  They are married and are the sole bread winner of their respective families.  The 1^st appellant has a son aged 7 and a daughter aged 1 while the 2^nd appellant has two sons aged 8 and 5 respectively.

7.They came to Hong Kong to buy spare parts for cars.  During their stay in Hong Kong, their money was stolen by somebody, resulting in them having no funds to live.  It was submitted that under the influence of a certain person they were introduced to stealing people’s telephones.  Their defence counsel submitted that the strongest mitigation was their guilty pleas and that the stolen properties were all recovered.  He recognised that as these were offences of pickpocketing, custodial sentences would be imposed. 

Magistrate’s reasons for sentence

8.The magistrate opined that this was a classic case of pickpocketing.  He followed the sentencing guideline for pickpocketing laid down by the Court of Appeal in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, in which the appropriate starting point for this type of offence was held to be 12-15 months’ imprisonment after trial for a first time offender.  The magistrate adopted a starting point of 12 months’ imprisonment for each charge.  He reduced the sentence to 8 months in order to reflect their guilty plea.  In relation to the 2^nd appellant he took into account the principle of totality and ordered that the sentences for Charges 2 and 3 to be served concurrently.

9.As a result he sentenced both appellants to 8 months’ imprisonment.

Grounds of appeal

10.In their respective Notices of Appeal to a Judge Against Sentence (Form 102), they complained that the sentences were too severe.

11.Prior to the hearing, both the 1^st and 2^nd appellants separately submitted a letter to the Court to further elaborate their situations.  They stated the following: -

(1) as this was the first offence they had committed, their term of imprisonment was causing them hardship;

(2) they were remorseful and;

(3) they wanted to be released as soon as possible from their term of imprisonment so that they could return to Mongolia to take care of their families.

12.At the hearing of the appeal they further claimed that their family conditions had worsened and the need to return to their families early was even stronger.  The 1^st appellant alleged that his mother had breast cancer requiring surgery while the 2^nd appellant contended that his wife had a car accident a few days ago and there was no one to take care of his children. 

Discussion

13.The offences were theft by pickpocketing.  The appellants were first time offenders.  The magistrate was correct to follow Ngo Van Huy and to adopt the recommended lowest starting point of 12 months’ imprisonment and to discount that term by one-third. 

14.The personal circumstances of the 1^st and 2^nd appellants asserted by them are not mitigating factors which warrant a further reduction of sentence.

Conclusion

15.There are no merits in the grounds of appeal.  The sentences imposed were neither manifestly excessive nor wrong in principle.  The appeals by both the 1^st and 2^nd appellants are dismissed. 

Mr Derek Wong, SPP, of the Department of Justice, for the respondent

The 1^st and 2^nd appellants appeared in person