HKSAR v. BANZRAGCH MUNKHBAATAR

CACC 207/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 207 OF 2017

(ON APPEAL FROM DCCC NO 221 OF 2017)

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J U D G M E N T

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1.  By Notice of Application for Leave to Appeal (“Form XI”) dated 5 July 2017, the applicant seeks leave to appeal against a total sentence of 20 months’ imprisonment imposed on him on 23 June 2017 by HH Judge Casewell (“the judge”) in the District Court in respect of his pleas of guilty to three charges, each alleging the theft of a different mobile telephone (Charges 1‑3), contrary to section 9 of the Theft Ordinance, Cap 210.

2.  He was jointly charged with D2, who pleaded guilty to two charges, also each alleging the theft of a mobile telephone (Charges 4‑5).

The Facts

3.  At about 11:30 pm on Christmas Eve 2016, plain clothes police officers patrolling in Tsim Sha Tsui intercepted the applicant and D2, both of whom were Mongolian nationals on tourist visas, who were seen to be acting furtively near the junction of Middle Road and Nathan Road before suddenly entering a rear lane at Chung King Mansion, Nathan Road.  They were both searched.

4.  In a rucksack carried by the applicant were found four mobile telephones, namely one iPhone 6 (Exh P1), one Samsung C500 (Exh P2) and two iPhone 6 Plus (Exh’s P3‑4).  The applicant was unable to unlock the said four telephones when requested by the police.   He was then arrested and brought back to Tsim Sha Tsui Police Station.  HK$138.20 and Mongolian Tughrik 1,600 were found on him upon further search.

5.  D2 was at the same time found to be in possession of two mobile telephones.

6.  The owners of Exh’s P1‑3 were located by the police.  Each of the three owners had discovered their respective mobile telephones missing at roughly 11:30 pm inside Sun Arcade, Tsim Sha Tsui (Exh P1); at 11:05 near the Hong Kong Science Museum, Tsim Sha Tsui (Exh P2); and at 12:30 am on 25 December 2016 near the Clock Tower, Tsim Sha Tsui (Exh P3).  They each subsequently identified their respective mobile telephones.

7.  Three of the four mobile telephones found in the applicant’s possession formed the subject-matter of the three charges (Exh P1 – Charge 1; Exh P2 – Charge 2; Exh P3 – Charge 3).

8.  On 26 December 2016, with the assistance of a Mongolian interpreter, the applicant admitted under caution that he had stolen the three telephones and said he would like to apologise for doing so.

Mitigation and Reasons for Sentence

9.  The applicant is a married man with three children.  He was of clear record in Hong Kong and self-employed in Mongolia, earning the equivalent of HK$3,000 per month.

10.  The judge considered from the facts and circumstances admitted in the Summary of Facts that the thefts must have been by pickpocketing, for which the starting point for an offender with a clear record would be 12 to 15 months’ imprisonment.  He was not prepared to aggravate the starting points on the basis that the mobile telephones were stolen in a crowded area to which the public had recourse.  Nor did he see that there were any other aggravating features on the facts.

11.  In view of the fact that there were 3 separate offences, the judge adopted a starting point of 15 months’ imprisonment in respect of each offence.  Granting the applicant a one‑third discount for his pleas of guilty, the applicant was sentenced to 10 months’ imprisonment on each charge.  The judge then ordered the sentence on Charges 2 and 3 to be served concurrently with each other but consecutively to the sentence on Charge 1. The total sentence passed was therefore 20 months’ imprisonment.

12.  D2, who pleaded guilty to stealing the two mobile telephones found upon him at the same time (Charges 4‑5), was sentenced to an overall sentence of 15 months’ imprisonment.

Grounds of Appeal

13.  The applicant states in his Form XI that the total sentence of 20 months’ imprisonment was excessive in view of the following matters:

(a) his guilty pleas;

(b) his clear record;

(c) he was remorseful from the outset and understood his wrong-doing;

(d) he believed that a lesser sentence would have been imposed had the case been heard in the magistrate’s court;

(e) he has a wife and three young children and is the only provider of financial support for his family in Mongolia; and

(f) as a foreign prisoner, he has been unable to contact his family members since his arrest.

Before me this morning, he has also queried why D2 should have received a lesser sentence of 15 months’ imprisonment, when he received 20 months’ imprisonment.

Respondent’s submissions

14.  The application is opposed by Mr Daryanani, on behalf of the respondent.  He submits that, in the absence of any evidence that the applicant came to Hong Kong in order to commit pickpocketing offences, or that he was part of a gang, or that he committed the offences with an accomplice, the sentence is in accordance with sentences for pickpocketing.

Consideration

15.  In my view, there are no reasonably arguable grounds of appeal against sentence.  Although the judge was not prepared to find any aggravating features in the present offences, I am doubtful, with respect, that an appellate court would agree.  In any event, regardless of the judge’s view, an appellate court would have to decide, on the basis of the known facts and circumstances, whether or not the overall sentence for the three offences could be said to be manifestly excessive or wrong in principle.

16.  There were, in my view, a number of aggravating features which the judge did not invoke when, with respect, he should have done so.  First, all of the mobile telephones which formed the subject-matter of the applicant’s offences were discovered missing on Christmas Eve 2016 between 11 pm and 12:30 am in the Tsim Sha Tsui and waterfront area.  It hardly needs proof positive that any part of Tsim Sha Tsui, particularly the waterfront, would be teeming with people at that time on that particular night of the year.

17.  Secondly, the applicant was found together with another Mongolian national, who was similarly in possession of recently stolen mobile telephones, which had been found missing at the same time in the same waterfront area as the stolen mobile telephones in the applicant’s possession. Clearly, the applicant was committing the offence “in conjunction with another”[1], even if there was no direct evidence that he was being assisted by an ‘accomplice’ in the strict sense of that term in the carrying out of the specific offences with which he was charged.

18.  Thirdly, these were three separate and distinct offences, which were clearly carried out within a short period pursuant to a deliberate plan: in no sense could they be described as opportunistic.

19.  Fourthly, these were obviously skilled executions of the offence within a short time span by a person very adept at what he was doing, since none of the victims was aware that they had been pickpocketed; two from their jacket pockets and one from a handbag.

20.  As to when the applicant had arrived in Hong Kong, and for what purpose, in relation to the commission of the offences was never explored by the prosecution or the court below.  With respect, this information should have been included in the Summary of Facts as a matter of course, or called for by the sentencing court if it was not.  Although I have been told the answer, I shall not draw any adverse inference against the applicant on that account.  However, given the significant number of leave applications or appeals in pickpocketing cases by foreign nationals on tourist visas with which I have dealt over the last few years, the authorities would no doubt be keeping statistics on the number of such cases, lest there be a particular problem with “tourism theft”, which may need addressing by the courts in due course.

21.  The only mitigation of any real weight was the applicant’s plea of guilty to the three offences.  His personal circumstances cannot be given any significant weight.  The applicant must have known of his family’s financial difficulties when he came to Hong Kong.  In my judgment, the applicant cannot complain about the individual starting points for each offence, which, in view of the number of offences and the above aggravating features, should each have been rather higher, in the region of 18 to 21 months’ imprisonment.

22.  Whatever the individual starting point should have been, an appellate court will look at the ultimate sentence to see if it is manifestly excessive or wrong in principle.  I can see no reasonably arguable ground of appeal that an overall sentence of 20 months’ imprisonment after plea for three pickpocketing offences in the circumstances disclosed is either manifestly excessive or wrong in principle.  As for any disparity with D2’s sentence, the fact is that, unlike the applicant, D2 was only convicted of two offences of pickpocketing.

23.  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, but he 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 the application.