HKSAR v. NYAMDOO ZOLJARGAL

CACC 54/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 54 OF 2016

(ON APPEAL FROM DCCC NO. 829 OF 2015)

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J U D G M E N T

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1. Following his plea of guilty in the District Court before HH Judge Casewell (“the judge”) on 28 January 2016, the applicant was convicted of two charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charges 1 and 3), and one charge of attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance, and section 159G of the Crimes Ordinance, Cap 200 (Charge 2). He was sentenced to an overall term of 2 years’ imprisonment. The applicant now seeks leave to appeal against his sentence.

The prosecution case

2. The applicant admitted the following facts.  On 7 July 2015, a visitor from the Mainland (PW1) was pick-pocketed of her coin bag, which she had placed inside the middle compartment of her shoulder bag.  The coin bag contained inter alia an American Express credit card (“Amex credit card”), a senior citizen’s Octopus card (“Octopus card”) and six other bank cards.  Upon realising that the coin bag was missing, PW1 made a report to the police and alerted the relevant card centres about the loss of her bank cards.

3. Later that evening, the applicant attempted to use the Amex credit card to buy a watch valued at HK$13,100 at a shop in Tsim Sha Tsui.  However, the transaction could not be approved, since the account had already been blocked by the card centre concerned (Charge 2).  The Amex credit card was then handed back to the applicant by the sales assistant and he left the shop.  The applicant subsequently went to a nearby convenience store and used the Octopus card to purchase some food items valued at about HK$32 (Charge 3).

4. As it happened, the applicant had all along been observed inside the two shops concerned by anti-crime patrol police officers in the area, whose suspicions had been earlier aroused when they noticed him acting furtively and looking around.  He was accordingly intercepted while on a staircase at Mirador Mansion eating a sandwich.  The officers asked him to produce proof of identity but the applicant failed to produce any.  He was then searched and the seven bank cards, including the Amex credit card, as well as two Octopus cards and two other membership cards, were found in the pocket of his trousers.  The applicant was duly arrested.

5. PW1 was subsequently to identify all of the said cards as her property.

Mitigation

6. The applicant was 30 years of age at the time of his sentence.  He was a Mongolian national and the holder of a Form 8 recognizance, thereby permitted to remain at large in Hong Kong as a torture claimant.  He was not employed and was sleeping on the streets.  It was submitted by counsel on his behalf that the applicant had found the coin bag unattended at Tsim Sha Tsui MTR station and picked it up.  Since he was hungry at that time, he bought some food with the Octopus card.

7. The applicant had had six previous appearances before the courts since 2010 involving a number of offences including one of theft, four of pick-pocketing, two of criminal damage, two of procuring another for sexual intercourse by false pretences, and breach of a suspended sentence.

Reasons for sentence

8. The judge was prepared to find that the applicant had only stolen the coin bag by way of finding it and that the evidence did not necessarily support the inference that he had come into possession of the item by pick-pocketing.  However, he considered it an aggravating factor that the applicant should be persisting in committing offences of theft.  Given his acceptance that Charge 1 involved theft by finding, while Charge 3 involved the theft of food items of relatively low value, the judge adopted a starting point of 6 months’ imprisonment for the respective charges.

9. The judge regarded the attempted use of the Amex credit card in Charge 2 as the most serious of the charges the applicant faced.  Since the applicant had no previous convictions related to the use of a stolen credit card, and since the judge did not think the watch in question could be described as an item of high value, he adopted a starting point of 3 years’ imprisonment.

10. The customary one-third sentence reduction was given for the applicant’s guilty pleas, thus discounting the respective sentences to 4 months’ (Charge 1), 2 years’ (Charge 2) and 4 months’ imprisonment (Charge 3); with all sentences being ordered to run concurrently with each other.

Grounds of appeal

11. In his Notice of application for leave to appeal against sentence (Form XI) filed on 22 February 2016, the applicant claimed that he has various illnesses and would like, therefore, to be released early so that he can go back to Mongolia for medical treatment.  He also referred to the sentence of 1 year imprisonment passed in DCCC 1072/2015 and contended that the sentence imposed on him in the present case was, by comparison, too severe.

12. The applicant further claims in his written submissions, filed on 3 May 2016, that his mother is seriously ill and he needs to go back to Mongolia to take care of her.  He says that the present case is not as serious as other cases of obtaining property by deception.  He asks the Court to consider his appeal on humanitarian grounds.

The respondent’s reply

13. Mr Derek Wong, on behalf of the respondent, submits that the starting point of 3 years’ imprisonment adopted by the judge in respect of Charge 2 was in line with the sentencing guidelines for simple cases of credit card fraud, where a single, genuine stolen credit card is used: see HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, a decision to which the judge also referred.  He also points out that the courts have held on countless occasions that, save perhaps in certain types of offence where guidelines have been issued, the exercise of comparing particular sentences passed on different facts, in different circumstances and on different defendants is of limited utility: see HKSAR v Chan Ka Chun (unrep., CACC 45/2015).

14. As for the applicant’s health condition, or that of his mother, the respondent submits that ill health can rarely be a mitigating factor with serious crimes.  It is of no relevance in the present case, where the applicant is being well looked after in custody.

Consideration

15. The sentence on Charge 2 was in accordance with clear appellate authority, while there can be no complaint about the individual sentences on the other two charges.  Indeed, the judge would have been entitled to make either or both of the sentences on Charges 1 and 3 partly consecutive and partly concurrent with the sentence on Charge 2; they being different offences committed in different circumstances, while Charge 3 involved the use of a different type of card in a different shop.

16. Furthermore, while the judge rightly regarded the applicant’s repeated thieving as an aggravating factor which would have justified a modest increase in the starting point, he does not appear to have given it any real effect, since he increased the starting point on Charge 1 only for this factor but then made the whole of the discounted sentence on that charge concurrent with the sentence for the more serious offence in Charge 2.

17. As for the applicant’s reliance on the sentence at first instance in DCCC 1072/2015, it is clear that the judge in that case deliberately passed what he himself described as “an exceptionally low sentence” for reasons peculiar to the circumstances of that case, which have no application to the present case.

18. In respect of the applicant’s claims about his and his mother’s health problems, whilst I have no reason to doubt their genuineness, they are not a valid reason for reducing an otherwise correct sentence.  The applicant has explained to me the nature of his own medical problems, which relate to his nose, ear, right eye, stomach, kidneys and liver.  However, it is clear that the applicant is being well cared for in custody, having undergone two operations since his incarceration.

19. I might add that it does seem somewhat remarkable that the applicant, who as a torture claimant has been permitted to remain at large in Hong Kong for so many years by virtue of a recognizance issued by the Director of Immigration, should now wish voluntarily to return to Mongolia, not only to address his own medical problems, but also to see his mother.

20. In all the circumstances, I can see no reasonably arguable grounds of appeal against sentence and the application for leave to appeal is refused.  The applicant is duly advised of his right to renew his application for leave to appeal against sentence to the Court of Appeal, but is also warned of the consequences of so doing, 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 his application.