HKSAR v. NYAMDOO ZOLJARGAL

HCMA 417/2018

[2018] HKCFI 2535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 417 OF 2018

(ON APPEAL FROM KCCC 2098 OF 2018)

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J U D G M E N T

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1.  The appellant pleaded guilty to a charge of theft contrary to section 9 of the Theft Ordinance Cap 210. The appellant admitted to stealing a laptop bag from a shop. He was sentenced to 10 ½ months’ imprisonment. The defendant now appeals against his sentence.

The facts

2.  At around 1550 hours on 27 June 2018 a police officer placed the appellant under observation as he found the appellant acting furtively inside a shop named “Cotton On” on Granville Road, Tsim Sha Tsui.  Whilst the appellant was inside the shop he was empty-handed however shortly thereafter the appellant was seen exiting the shop without making payment holding a black laptop bag.  The appellant was arrested.  The manager of the shop confirmed the laptop bag belonged to the shop and it had not been paid for. 

Background of appellant

3.  The appellant is a Mongolian national.  He is aged 33.  He is a torture claimant who arrived in Hong Kong in 2010.  He has committed sixteen offences since his arrival in Hong Kong, of those ten are related to dishonesty and of those nine are similarly for theft. 

The magistrate’s reasons for sentence

4.  In passing sentence the magistrate[1] considered a number of aggravating features.  Firstly, during his seven and half years in Hong Kong she determined that the appellant was a recidivist as was seen from the appellant’s previous convictions.

5.  Secondly, the appellant had committed the present offence soon after his release from prison for a similar offence. 

6.  Thirdly, the appellant’s status as a torture claimant.  She considered the need to protect the public as his persistent criminal acts had tarnished the good reputation for order and security of Hong Kong.  He was a danger and threat to the society and people who afforded him the privilege and opportunity to remain in Hong Kong. 

7.  Accordingly, the magistrate adopted a starting point of 9 months’ imprisonment and enhanced it to 10 ½ months to reflect the aggravating features in the case. 

The grounds of appeal

8.  The appellant who appears in person submitted in his home made grounds of appeal that the sentence was too severe.  He averred that his lawyer advised him if he pleaded guilty he would receive 3 months’ imprisonment.  He urged the court to consider two other cases (giving their magistracy case numbers) involving other offenders whom he says had many previous convictions just like him. 

9.  The appellant further submitted that due to his health issues experienced in custody of sitting too long causing bleeding of his buttocks he applied for a reduced sentence to permit him to seek a more proficient doctor outside the confines of prison. 

Discussion

10.  Although the appellant referred to the two magistracy cases he made no mention of the sentences passed.  Ms Claudia Ng Senior Public Prosecutor after checking found that the defendants in those two cases were charged with theft, pleaded guilty and were sentenced to 2 and 4 months respectively.  It is however not known what the facts and the background of the defendants in those cases were. 

11.  The courts have repeatedly said and in a recent Court of Appeal case of HKSAR v Joof Saihou CACC252-2017 Zervos J stated[2]

“The sentences passed in other cases, particularly at first instance, are seldom of much utility when considering the appropriateness of a sentence in a particular case on appeal. There are two main reasons for this. The first is that no two cases are exactly alike: the circumstances of the offence and the offender will vary. Indeed, a sentence reached in one case can sometimes be misleading if directly applied to another case on different facts and in different circumstances. The second is that the task of an appellate court in examining whether the sentence passed was proper will invariably involve a consideration of whether the sentencing court has fallen into appealable error, not whether a lesser sentence was given in another unrelated case.” (my own emphasis)

12.  As Macrae JA in Joof above went on to say at paragraph 35:-

“Comparisons with sentences passed in other cases can sometimes be misleading, because the circumstances of the offence and the offender will be different as between different cases…”

13.  The fact that the other two cases referred to by the appellant received a lesser sentence are of no assistance to this court as they are unrelated to the appellant’s case.  What is for consideration is whether the magistrate has fallen into appealable error. 

Discussion

14.  There are no merits in his grounds to have his sentence reduced because of his health issues and request for outside medical treatment.  There are competent and professional medical care provided to him and indeed all offenders who are in the care of the Correctional Services Department. 

15.  There are clearly aggravating features in this case.  It is well established that the appellant has numerous previous convictions of a similar nature.  Although an accused should not be sentenced twice for the same offence that fact of repetitive offending for the same type of offence warrants an aggravation of sentence.  This is a gravely aggravating feature in the circumstances of this case.  His previous earlier sentences the appellant had served had plainly no deterrent effect. 

16.  The appellant’s status as a torture claimant.  He was not lawfully in Hong Kong but he was allowed to remain at liberty by virtue of a recognizance issued by the Director of Immigration whilst his claim was being processed. Yet despite the hospitality extended to him he chose to abuse that privilege. He had deliberately set out to commit the crime aimed at the very community which has afforded him the privilege of remaining at liberty.  The crime also has the effect of tarnishing the City’s reputation for order and security which he seeks to avail himself. 

17.  The magistrate also rightly observed that the appellant had committed this present offence shortly after he had served his sentence of 8 months’ imprisonment for another offence of theft. 

18.  Considering the case facts and the appellant’s background there was no error in the starting point of 9 months’ imprisonment nor the enhancement of 1 ½ months’ imprisonment for the aggravating features in this case.  The sentence was fully justified.

19.  There is no merit in the appeal against sentence.  The appeal is dismissed.