HKSAR v. VANYA, NASANBAYAR

HCMA 360/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 360 OF 2015

(ON APPEAL FROM KCCC 1580 OF 2015)

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JUDGMENT
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Appeal Against Conviction

1.  Upon the appellant appealing only against sentence and not conviction, I will treat his appeal against conviction as abandoned.  His appeal against conviction is therefore dismissed.

Appeal Against Sentence

2.  This is an appeal against sentence whereby the appellant was convicted of theft contrary to section 9 of the Theft Ordinance, Cap 210.

3.  The appellant pleaded guilty to the charge of theft on 29 May 2015 and was sentenced by the magistrate[1] to a sentence of 8 months’ imprisonment.  

The facts

4.  Police officers were conducting anti‑pickpocket control at Mong Kok Road when they noticed the appellant acting suspiciously at about 1910 hours on 5 May 2015.  Upon observation a police officer saw the appellant taking a mobile phone from a handbag of a lady in Shop C of 30-36 Mong Kok Road, Mong Kok.  The appellant had used a magazine to cover his act at that time.

5.  The mobile phone he stole was a black Samsung Note 3 valued at HK$5,000.

Reasons for sentence

6.  The magistrate took into account the mitigation put forward by his legal representative, counsel instructed by the Duty Lawyer Service[2].  He took into account the fact that the appellant was 35 years of age, married with four children aged 10 months, 2 years, 4 years and 10 years old.

7.  The defendant is from Mongolia.  All his family members reside there.  He is a garment merchandiser.  He has a clear record.  He is presently in Hong Kong as a torture claimant.  Counsel asked the magistrate to take into account his plea of guilty which showed his remorse. 

Grounds of Appeal

8.  The appellant’s only ground of appeal is that the sentence is too severe.  He asked the court to reduce his sentence on humanitarian grounds because he needs to return to Mongolia to support his family and four young children.

Discussion

9.  This was a pickpocketing offence.  The magistrate correctly referred to the guideline case of R v Ngo Van Huy [2005] 2 HKLRD 1 whereby the Court of Appeal laid down the tariff that a sentence after trial for a first‑time offender would be one of between 12 to 15 months’ imprisonment. 

10.  The magistrate took into account all the mitigating factors and found that there were no mitigating factors which warranted a further discount other than the appellant’s plea of guilty and sentenced him to 8 months’ imprisonment.

Conclusion

11.  The appellant has advanced no further mitigating factors to warrant any further reduction of his sentence.  The sentence was proper in light of the guidelines.  In the circumstances the appeal against sentence is dismissed.