HKSAR v. ZUNDUIDAVAA ZINAMEDER

CACC 235/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 235 OF 2016

(ON APPEAL FROM DCCC NO 476 OF 2016)

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J U D G M E N T

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1.  The applicant, along with two other defendants[1], faced a joint charge of attempted theft, contrary to section 9 of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200. He pleaded guilty to the charge before HH Judge Sham (“the judge”) and was sentenced on 20 July 2016 to a total of 20 months’ imprisonment. At the same time, a previous suspended sentence of 14 days’ imprisonment was activated and ordered to run consecutively to the 20 months. On 15 August 2016, the applicant filed a Notice of application for leave to appeal against his sentence (Form XI).

The facts

2.  The following facts were agreed by the applicant.  On 11 March 2016, at around 7:30 pm, a police officer observed the applicant with two others (D1 and D3 in the proceedings below) paying close attention to the personal belongings of pedestrians whilst walking along Granville Road in Tsim Sha Tsui.  D3 gave a hand gesture towards a lady carrying a handbag, and then got on board a taxi, whilst the other two walked up to the lady.  D1 inserted his hand into her handbag, whilst the applicant, who was also acting as a lookout, distracted the lady.  Sensing that someone had touched her handbag, she immediately checked whether anything was missing.

3.  Having failed to steal anything, the applicant and D1 also boarded the taxi and attempted with D3 to leave the scene. However, they were intercepted and arrested by police officers.  Upon a body search, two octopus cards were found on D1 and two mobile telephones found on D3.

4.  The two mobile telephones were later confirmed to be missing property by their owners.  One of the owners had last used her telephone at 6:53 pm that evening in Haiphong Road, Tsim Sha Tsui, after which she had placed it in the outer pocket of her jacket.  By 7 pm, she discovered that her telephone, worth HK$5,000 was missing.  The other owner had last used her telephone at around 7 pm that evening in the vicinity of the Star Ferry pier in Tsim Sha Tsui.  By the time she arrived at “I Square” in Nathan Road, Tsim Sha Tsui, her telephone, worth HK$6,500 was missing.

5.  D1 had entered Hong Kong on 10 March as a visitor.  D3 had entered Hong Kong on 30 January 2016 and was permitted to remain until 13 February 2016.  At the time of his arrest on 11 March 2016, he was overstaying in Hong Kong.

6.  The applicant had entered Hong Kong in November 2015 and was a non-refoulement claimant.

Mitigation

7.  In mitigation, it was submitted that the applicant was a 25 year-old Mongolian national with a 3 year-old son.  His non-refoulement claim was still being processed and he was not entitled to receive money from the International Social Service nor to seek employment in Hong Kong.  He had been living with other Mongolians in Hong Kong, who provided him with accommodation and food.  He was introduced to D1 and D3 by a common friend.  It was submitted that a starting point of 30 months’ imprisonment was appropriate after taking into account the various aggravating factors present, namely planning and premeditation; the fact that the offences were committed at a busy tourist location; the degree of international element; and the applicant’s status as an asylum seeker.  However, it was submitted that there was no evidence that the defendants were a professional gang, since they had only met after arrival in Hong Kong through a common friend.  The cases of HKSAR v Sandagdorj Altankhuyag & anor [2014] 1 HKC 206and HKSAR v Ganbold [2015] 1 HKLRD 999 were referred to and relied upon by defence counsel.

Reasons for sentence

8.  In sentencing, the judge noted the sentencing guidelines laid down in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, and the non-exhaustive list of aggravating factors cited in that case.  The judge also noted that the starting point depended on the value of the property stolen, the age or vulnerability of the victim and the expertise used in the theft.

9.  It was held that the way the plan was executed, and the efficiency and professionalism of its execution, indicated that this was an organized pick pocketing gang, which warranted a higher sentence of 2½ years’ imprisonment.  Giving the full one-third discount, a final sentence of 20 months’ imprisonment was imposed upon the applicant.  The judge also saw no reason not to activate the suspended sentence which the applicant had breached, and ordered it to run consecutively to the 20 months’ imprisonment.

Grounds of appeal against sentence

10.  In his Form XI, the applicant stated that his sentence was excessive for this kind of offence.

The respondent’s submissions

11.  Mr Antony Leung, in his written submissions on behalf of the respondent, submitted that the applicant had abused the hospitality extended to him by the authorities and people of Hong Kong by committing an offence aimed at the people of Hong Kong and the reputation of this City; further, the judge was correct to note the other aggravating factors present in the commission of the offence.  Therefore, the starting point of 30 months’ imprisonment was appropriate.

Consideration

12.  The offence was clearly carried out by an organized gang of pickpockets in an area where, and at a time when, there could be expected to be many people, both locals and tourists alike.  The professionalism with which they acted is exemplified by the different roles each participant played in executing the crime: D1 inserted his hand into the victim’s handbag, the applicant distracted her whilst also acting as a lookout, and D3 prepared the taxi to effect a quick getaway.

13.  The position of the applicant is not dissimilar to that of the 2^nd appellant in Sandagdorj Altankhuyag & anor (supra), where the court said this, at para 20-21:

“21. The second matter which stands out from the facts of this case concerns the 2^nd Appellant. He was a torture claimant who, like many in his position, was not lawfully in Hong Kong but was nevertheless allowed to remain at liberty by virtue of a recognisance issued by the Director of Immigration whilst his claim was being processed. Yet, despite the hospitality extended to him by the authorities and people of Hong Kong, he chose to abuse that privilege by targeting an area well known as a tourist destination, and one that is frequented by significant numbers of tourists and locals alike, in order to steal.

22. Where someone in the position of the 2^nd appellant deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered, and when that crime also has the effect of tarnishing this City’s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime.”

These words have been subsequently approved and applied in HKSAR v Norena Gutierrez Cristhian Andres (unrep., CACC 319/2014, 30 April 2015) at para’s 23-27; HKSAR v Azad Mohammed Farhan (unrep., CACC 173/2015, 20 July 2016) at para’s 151-152; and HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, at para’s 30-34.

14.  The facts of this case were arguably more serious and sophisticated than those in Sandagdorj Altankhuyag (supra), inasmuch as a gang of three men (rather than two), all of them foreign nationals acting in concert, were involved and a taxi prepared by one of the accomplices was used as the instrument of escape.  As the judge himself observed, the Court of Appeal, in one of the leading cases dealing with guidelines for pickpocketing, namely HKSAR v Ngo Van Huy (supra), endorsed, at 8D-E, the remarks of Patrick Chan J (as he then was) in HKSAR v Ho Minh Cong (unrep., HCMA No 547 of 1999):

“We take this opportunity to indicate that in our view, because of their seriousness, organized crimes of this nature including group pickpocketing, even without international ramifications, might in future properly attract a starting point of at least 2½ years’ imprisonment.” (Emphasis supplied)

15.  It seems to me that on the basis of authority, now firmly entrenched by the Court of Appeal, there is no arguable ground of appeal against a starting point of 2½ years’ imprisonment for the type of offence in which the applicant was involved.  Indeed, it is arguable that the starting point could have been even higher.  Nor is there any arguable ground of appeal in relation to the sentence reduction after plea.  Finally, there can be no valid complaint whatsoever about the activation in full of the suspended sentence of 14 days’ imprisonment, which had been passed less than 6 weeks before the applicant committed this offence.

Conclusion

16.  The application is refused.  The applicant is advised that he has the right to renew his application for leave to appeal to the Court of Appeal. However, since I have suggested that the starting point might have been even higher given the particular facts of the case and the circumstances of the offender, he should also be warned of the consequences of renewing his application, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.