HKSAR v. TSOLMON, OCHIRKHUU

HCMA 315/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 315 OF 2013

(ON APPEAL FROM ESCC NO. 742 OF 2013)

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REASONS FOR JUDGMENT

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Introduction

1.  The appellant was charged with one count of theft that allegedly occurred on 2 March 2013 at the 2^nd Floor, Hysan Place, Wanchai when he was said to have stolen one Apple iphone 4 from the coat pocket of a woman in this shopping mall.  He was tried at Eastern Magistracy on 21 March 2013 by Magistrate Kathie Cheung Kit-yee and on 12 April 2013 was convicted of this offence.  On the same day he was sentenced to 12 months’ imprisonment.  He then appealed against both conviction and sentence.  At the hearing of the appeal I dismissed both appeals and said I would later hand down my reasons for doing so.  These are those reasons.

The Trial

2.  The prosecution case was a very simple one.  The allegation against the appellant was that he was observed pick-pocketing an Apple iphone from the coat pocket of a female victim, PW2, at the second floor of the Hysan Place shopping mall.  PW2 was with two friends.  After stealing the phone from the victim’s coat pocket the appellant walked up an escalator from the second to the third floor of the shopping mall.  The victim became aware that she had been pick-pocketed and shouted out.  Standing away from PW2 was PW1 who, on observing the incident, approached PW2 and told her what she, PW1, had seen.  PW2 and her friends pursued the appellant who, when confronted, handed over the iphone.  The appellant tried to walk away but PW2 followed him, intercepted him and handed him over to security guards.

3.  The appellant gave evidence and testified that he picked up the victim’s mobile phone from the floor next to the escalator on the second floor.  He then took possession of the phone and took the escalator to the third floor.  Whilst standing on the escalator he heard a lady shout and when he turned around he saw the victim and handed to her the phone.  He said that as he is a Mongolian he could not understand what the lady was saying.  He then tried to walk away but was followed by others and later stopped by a person.

The Magistrate’s Statement of Findings

4.  The magistrate gave herself the standard directions, included amongst which was the following:

“I bear in mind that the defendant has no criminal record in Hong Kong when assessing the evidence.”

5.  The magistrate considered the evidence of PW1 who was an independent witness whose evidence she felt was lacking in any discrepancies or inherent improbabilities.  The witness was unshaken in cross-examination and the magistrate found her to be truthful and concluded that there was no reason not to give her evidence full weight.  In so doing she considered the matters advanced on behalf of the appellant that, it was said, called into question the reliability of PW1’s evidence.  However, she rejected those matters as being insignificant in the impact they had on the reliability of that evidence.

6.  Similarly, she found the evidence of PW2, the victim of the theft, to be both credible and reliable.  She found the evidence of PW2 to link seamlessly with that of PW1 and noted that other than the evidence of the appellant being observed to steal PW2’s phone, there was little else of the evidence of these two witnesses that was challenged.

7.  The magistrate then went on to consider the evidence of the appellant and analysed it in some detail.  She concluded that there were significant parts of it that were illogical and that the appellant was not telling the truth.  For example, he said he found the phone on the second floor but instead of looking for the owner or handing it to security staff he immediately travelled to another floor, thereby creating distance between himself and the owner.  When the owner approached him he said he could not understand what she was saying but still he meekly handed over the phone to her.  Nor surprisingly she found his evidence to be unbelievable and rejected it.

8.  Having rejected the defendant’s evidence and found the evidence of the prosecution witnesses to be both credible and reliable, she, thereupon, convicted the appellant.

9.  When she came to sentencing the appellant the magistrate directed herself in accordance with the guideline sentence laid down by the Court of Appeal in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  That case laid down a guideline sentence of 12 - 15 months after trial for a first offender.

10.  Noting that there were no aggravating features in this case and that the appellant had a clear record, the magistrate adopted a starting point of 12 months’ imprisonment; that is a starting point at the bottom of the Ngo Van Huy range.  She considered whether any other mitigating factors were present which justified a reduction of this starting point and concluded that there were none.  She, thereupon, imposed upon the appellant a sentence of 12 months’ imprisonment.

The Appeal

11.  In his Notice of Appeal the appellant did not identify any ground of appeal upon which he relied other than to assert that he is not guilty of the offence of which he has been convicted.  In respect of his appeal against sentence he said that the sentence was too severe.  In a separate letter addressed to the court the appellant said simply that he wished to explain his position in respect of this case.

12.  At the hearing of the appeal the appellant, unrepresented, addressed the court asserting that he told the truth to the magistrate.  Apart from this he was not able to advance any ground in support of his appeal against conviction and simply repeated his assertion that he did not commit this crime.

13.  In respect of his appeal against sentence he said that the sentence of 12 months is too heavy and that as he has never been in prison before and is the breadwinner of his family, he would like to return to Mongolia as soon as possible.

Discussion

14.  I can find no error by the magistrate in her analysis of the evidence. She has carefully considered the evidence of the prosecution witnesses and of the appellant.  The prosecution case was essentially based upon the evidence of PW1 who was an independent observer to the events in question.  PW1 had an unobstructed and clear view of the appellant committing the act of pick-pocketing and once the magistrate decided that the evidence of this witness was the truth and was reliable then a conviction was inevitable.

15.  Counsel for the respondent has, very fairly, brought to my attention the direction of the magistrate earlier quoted where she stated that she bears in mind “that the defendant has no criminal record in Hong Kong when assessing the evidence”.  Counsel for the respondent is concerned that this may not be a full good character direction insofar as it may only be a credibility direction.

16.  I do not believe that the magistrate was, in fact, limiting herself in the way suggested.  Certainly, the magistrate has not expressed herself as fully as might be desirable in order to clearly reveal how she was taking the appellant’s good character into account but I have no doubt that in this short-hand reference to good character she was directing herself both on credibility and propensity. One has also to bear in mind that magistrates are professional judicial officers with a very substantial workload.  As an appellate court I have to be satisfied that the magistrate was fully alive to the issues with which she had to deal and to the relevant legal principles which she had to apply in resolving those issues.  Rather than disturb me, her short-hand reference to the appellant’s good character confirms in my mind that she was aware that she had before a defendant of good character with all that that entailed in terms of the legal directions she had to bear in mind.

17.  This being a rehearing I have myself considered the evidence as summarized in this Statement of Findings and as referred to by counsel in their closing addresses.  The evidence of PW1 was clearly very compelling evidence. This was a case of an independent outsider observing the appellant in an act of pick-pocketing with the defence simply being that this did not happen.  There was no reason not to doubt that PW1 was telling the truth.  The only issue was PW1’s reliability.  The matters referred to by the appellant’s counsel at trial to question PW1’s reliability were addressed by the magistrate and resolved favourably to PW1.

18.  There is no doubt that the evidence was sufficient to justify the conviction of the appellant and I can find no reason to regard this conviction as unsafe.  For these reasons I dismissed the appeal against conviction.

19.  In respect of the appeal against sentence it was clear that the magistrate had correctly directed herself on the law and had treated the appellant as generously as she could in accordance with the established sentencing guideline.  There is no basis for imposing on the appellant any lesser sentence.  For these reasons I dismissed the appeal against sentence.