HKSAR v. BALDANJAV BUYANBADRAKH

HCMA299/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.299 OF 2004

(ON APPEAL FROM ESCC 977 OF 2004)

-----------------------------

-----------------------

----------------------

J U D G M E N T

----------------------

1. The appellant had pleaded guilty to, in Eastern Magistracy, two offences of theft. The first count involved a pair of jeans and the second a pair of shoes, they were worth $699 and $2,700 respectively. The admitted facts disclosed that the appellant and two other persons were seen in a shop inside the Sogo Department Store. When they left, the staff found that a pair of jeans was missing. So a staff member followed the appellant, stopped him outside the shop, and found the jeans with him. The pair of stolen shoes was also discovered. In sentencing the appellant, the learned magistrate adopted the starting point of six months for both offences and reduced the term to four months each to reflect the guilty pleas. He further ordered that the two terms were to run concurrently. Hence the total sentence was four months.

2. The appellant sought to appeal against the sentence claiming that it was manifestly excessive. Having considered the circumstances and the submission by the respondent, I had allowed the appeal to the extent that the four months would be reduced to two months.

3. As to the reason given by the learned magistrate for the sentence he had imposed, he stated in the Reasons for Sentence that :

" The Defendant committed 2 acts of shoplifting in a crowded Department Store while accompanied by 2 others. Such offences are extremely prevalent and, in particular, shops within the Sogo Department Store are frequently the victims of such offences.

The Defendant was a tourist and, though still young, was sufficiently mature to travel on his own to Hong Kong and to commit these offences. I considered a custodial penalty appropriate.

I took 6 months as the starting point for sentence. I allowed the usual reduction for the Defendant's plea and imposed a sentence of 4 months imprisonment."

4. The appellant was not legally represented in the appeal. To support his application, he had written a note stating that he was a citizen of Mongolia and was a student attending secondary school. He came with his friends to Hong Kong as a visitor during his winter vacation. He expressed remorse and said that the imprisonment was a devastating experience particularly due to the language barrier. He said he had learned a lesson already and asked to be allowed to return home soon to resume his classes. He feared that he might be expelled from the school if he was detained in Hong Kong any longer.

5. The appellant's account was impossible to verify but he did appear to be around the age as he had claimed. One would have to give him the benefit of the doubt that he was indeed a student. While I must accept the learned magistrate's assessment of the degree of prevalence of this type of offence in areas within the magistracy's jurisdiction, however, the appellant is, after all, only 16 years of age. I have seen the statistics compiled by the respondent regarding the type and level of sentence for this kind of offence. I believe an immediate custodial term would be rather unlikely for a young person with a clear record. It is true that the deterrence aspect of the sentence must be considered to safeguard the shops in Hong Kong, particularly those which are situated in crowed areas. But a shorter term of imprisonment would have been sufficient in the present case. I consider that two months would be an appropriate sentence in the circumstances.

6. Thus, I had allowed the appeal and reduced both terms to two months. The concurrent order would remain the same. The total sentence is therefore two months.