HKSAR v. JAVZMAA, DALAITSETSEG

HCMA 454/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 454 OF 2011

(ON APPEAL FROM KCCC 1920/2011)

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BETWEEN

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J U D G M E N T

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1.  The Appellant pleaded guilty to 4 charges of Theft (shoplifting) in the Magistracy and was sentenced by Magistrate Madam Chainrai to a total of 7 months’ imprisonment. It is against that sentence that the Appellant appeals.

2.  The Appellant also applied for an extension of time for giving notice of appeal explaining in a letter that she was late because of the language barrier as she came from Mongolia.  The Magistrate granted the application and the Appellant filed a notice of appeal against sentence stating the general grounds that the sentence was too severe.

3.  The Appellant was convicted together with the 2^nd Defendant, who was stated to be her boyfriend.  He too had pleaded guilty and was sentenced to the same term.  He did not appeal against sentence.  The Magistrate did not consider that this was simple shop theft.

4.  The Appellant and her boyfriend had gone to 4 shops in the Elements shopping mall and had stolen high value items of $23,340 in total.  At the time, the Appellant’s handbag had been lined with aluminum foil apparently to circumvent the antitheft alarm system used by shops.  Inside the Appellant’s handbag was found a pair of pliers and an anti-theft tag from some item marked “Bvlgari”.

5.  Shop staff recognised the Appellant and the 2^nd Defendant as they walked past their shop, as the couple seen on CCTV footage showing them stealing a Burberry T-shirt earlier that day.

6.  These were serious charges of their kind: four name brand shops were targeted in one day and high value items were stolen.  There was evidence of premeditation as the Appellant’s handbag was lined with aluminium foil and she was carrying a pair of pliers.  The presence of the “Bvlgari” label indicated that the pliers had been used to remove the label.

7.  When sentencing, the Magistrate noted that the Appellant was aged 20 and had a clear record in Hong Kong.  She lived with her mother and younger brother in Mongolia, her father was dead.  At the time of her arrest, she was a tourist in Hong Kong but had lost her travel documents and was therefore on a recognisance. She sought leniency from the court.

8.  When sentencing, the Magistrate took a starting point of 6 months for each charge, discounted that by ⅓ to take account of the plea of guilty, and sentenced her to 4 months’ imprisonment on each charge.

9.  These were separate and distinct offences which, the Magistrate correctly stated, warranted consecutive sentences.  The Magistrate took into account the fact that the offences were all committed on the same day and took totality into account.  She ordered that 3 months of the sentences on charges 2, 3 and 4 were to be concurrent with the sentence on charge 1, and one month of each of the sentences on charges 2, 3 and 4 was to be consecutive, making a total of 7 months’ imprisonment.

10.  The Appellant appeared in person on 2 August 2011 in respect of this appeal and sought leniency on the same grounds as she advanced before the Magistrate.

11.  When she made her submission, she appeared to be indicating a change of plea, because she put forward different facts from those she put before the Magistrate.  Accordingly, the matter was adjourned, so that she could consider her position and whether she wanted to apply to change her plea.

12.  On her further appearance before me, she indicated that what she told the Magistrate was correct.  She had pleaded guilty and she was abiding by the plea and the facts she had admitted before the Magistrate.

13.  I have considered the Magistrate’s Reasons for Sentence and looked at the cases on sentence which were put before the court by the Respondent.  At least two had the similar ingredients of having a Mongolian defendant, the used of foil-lined bags, multiple offences in a short period and name brand items of high value being targeted.  The Magistrate took all relevant factors into account.  The sentences imposed are neither wrong in principle nor are they excessive in length.

14.  The appeal against sentence is dismissed.