HKSAR v. TUMURBAATAR ENKHBAATAR

HCMA 309/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 309 OF 2010

(ON APPEAL FROM ESCC 6187/2009)

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BETWEEN

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J U D G M E N T

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1.  The Appellant, who was D1 at trial before the Magistrate, pleaded guilty to one offence of handling stolen goods (Charge Three on the original charge sheet). He was sentenced to 8 months’ imprisonment and appealed against the sentence on the general ground that his sentence was too severe.

2.  The Appellant was charged with two other men; D2 pleaded guilty to a charge of theft and was sentenced to 8 months’ imprisonment and D3 pleaded guilty to two charges of theft and was sentenced to 8 months’ imprisonment on each charge to run concurrently. All three men are residents of Outer Mongolia and at the time of these offence were visitors to Hong Kong.

3.  The facts showed that the police saw the Appellant and his two companions acting suspiciously so intercepted them. Two mobile phones were found inside a shoulder bag carried by the Appellant and he could not explain the ownership of the telephones.

4.  After investigation, PW1 told the police that he stopped his private car outside the Mira Hotel in Tsim Sha Tsui. Both front windows of the car were open. An unknown male approached to ask for directions and afterwards PW1 found that his iPhone was missing from the compartment near the gear stick. A second witness saw that another unknown man (subsequently identified as the Appellant) had taken the iPhone.

5.  PW3, the owner of the second phone, revealed that she had put her Nokia telephone on the table while she was with friends in a bar in Lan Kwai Fong and later discovered it was missing.

6.  The Appellant denied theft when cautioned and alleged that D3 had put the telephones in his shoulder bag. At plea the prosecution did not proceed with a charge of theft against the Appellant and only the Nokia mobile phone was the subject matter of the charge of handling stolen goods to which the Appellant pleaded guilty.

7.  When sentencing, the Magistrate took into account various factors. These included the facts of the case, the background of the Appellant including his clear record and the fact he was a visitor. The Magistrate noted that the offence had been committed shortly after the Appellant’s arrival in Hong Kong. The item handled was a mobile phone valued at $1,500. It was readily disposable and inconvenience would be caused to the owner because of having to retrieve personal data contained in the telephone. Further, the Appellant was closely connected with the primary offence as the handling was committed soon after the telephone was stolen.

8.  The Magistrate referred to The Queen v. Tang Ho Yeung [1980] HKLR 357 which enjoined courts in considering handling charges to take note of the nature of the original theft and the accused’s degree of connection with the theft. The facts showed that the 3 men were acting together and that the Appellant was assisting in disposing of the telephone for his companions who took part in the primary offence. A very short time separated the taking of the items and their being found in the Appellant’s bag.

9.  The Magistrate could see no reason why the Appellant should be treated more leniently than his co-accused. She took a starting point of 12 months, gave the full 1/3 discount for plea and sentenced him to 8 months’ imprisonment.

10.  On the afternoon of the day when this Appellant was convicted the Duty Lawyer sought a review of sentence and put before the Magistrate the case of HKSAR v. Wong Ka Chun (HCMA 1131/1998). In that case the judge agreed that a sentence of 9 months’ imprisonment imposed for a handing charge was correct, but suspended the sentence because of particular facts relating to that defendant’s family circumstances. The Magistrate considered the facts of that case, but found it distinguishable from the present case and declined to alter the sentence.

11.  Today, the Appellant in support of his appeal said that he came to Hong Kong on business for a few days only. He explained his family circumstances, which he said were difficult because the bank foreclosed on his house, his family was living in a shelter, and his family was suffering from a severe winter. All these matters had been put before the Magistrate.

12.  The Magistrate in her Reasons for Sentence examined the sentencing principles relating to handling offences and considered the submissions made by counsel. She accepted that it was a small-scale operation, but noted some aggravating features:

(1)  the act of handling was committed very soon after the theft;

(2)  the primary offence was the theft of mobile phone – a valuable item;

(3)  the victim lost the value of the item and also personal data;

(4)  the Appellant was acting with others.

13.  The Magistrate might also have added that the Appellant was a visitor and that too can be regarded as an aggravating factor.

14.  The only mitigation in this case was the Appellant’s plea of guilty for which he was given a full discount. The sentence imposed by the Magistrate was not excessive nor wrong in principle.

15.  Accordingly, this appeal against sentence is dismissed.