HKSAR v. NATSAGDORJ MUNKHBAYAR AND ANOTHER

HCMA672/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.672 OF 2006

(ON APPEAL FROM KCCC 3376 OF 2006)

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J U D G M E N T

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1. The 1^st and the 2^nd appellants, who were the 4^th and the 5^th defendants at the trial, appeal against the sentences of 4 months imposed on each of them by Mr Tong Man, following their convictions after pleading guilty to separate counts of theft, charges 1 and 2, at the Esprit store in Way Fong Plaza in Mongkok.

2. The appellants were observed acting suspiciously with three other persons and then entering the Esprit store at about 4:43 p.m. on 3 June 2003.  At least two of the other three people were, like the 1^st and 2^nd appellants, of Mongolian origin.  Two of them stole items of clothing from the store and put the items into a bag carried by the third person.  It was a cloth bag with counter anti-theft alarm tin foil inside the bag.  Meanwhile the 1^st appellant was seen to steal a pair of trousers and a green vest and put it into his bag.  The 2^nd appellant stole a pair of white trousers and put them into her bag which also contained counter anti-theft alarm tin foil in the bag.  They then joined the other three people and left the store.  They were arrested in possession of the stolen items.

3. The 1^st appellant was found to have $12.60 on him and the 2^nd appellant had no money on her.  While the 2^nd appellant had no previous convictions, the 1^st appellant had been convicted of theft offences in Hong Kong on 2 occasions in 2003 and 2004.  On the latter occasion he had been sentenced to 2 months’ imprisonment.

4. In the case of both appellants it was said on their behalf that they had committed the offences out of momentary greed.  The 2^nd appellant claimed to have herself been the victim of theft and to have lost all her property in a guesthouse in Hong Kong.  It was claimed that neither of the appellants knew the other three Mongolians.

5. Not surprisingly, the magistrate rejected the mitigation put forward and concluded that all five were professional shoplifters acting as a group.  He adopted a starting point of 6 months’ imprisonment, which he reduced to reflect their guilty pleas to the sentence of 4 months’ imprisonment against which the appellants now appeal.

6. I am satisfied that the sentences of 4 months’ imprisonment were perfectly proper in the circumstances.

7. Both appellants are due for release in respect of this offence next Wednesday, 23 August.  However, the 1^st appellant has subsequently been convicted of two further offences and sentenced to a term of 8 months’ imprisonment, 6 months of which were ordered to run consecutively to the sentence for this offence, meaning he will not be released until the end of December this year.  There is no appeal against sentence before this court in respect of those subsequent offences.

8. Before this court the 1^st appellant has put forward family circumstances and the fact that he starts his university in September as justifying his early release.  None of those matters justify his earlier release on compassionate grounds in all the circumstances.

9. The 2^nd appellant told the court that in view of the fact that she is due to be released next Wednesday she does not now wish to pursue her application to be released earlier.

10. I accordingly dismiss the appeal against the sentence of both appellants.