HKSAR v. SEDBAL Chinbat

CACC 153/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 153 OF 2005

(ON APPEAL FROM DCCC NOS. 39 AND 213 OF 2005)

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J U D G M E N T

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1. The applicant was convicted of five charges on 30 March 2005 following trial in the District Court before Deputy Judge P Li.  For Charge 1, attempted theft, the judge sentenced him to 18 months’ imprisonment.  For Charges 2, 3 and 4, all for handling stolen goods, the judge sentenced him to 18 months’ imprisonment on each, concurrent.  The judge ordered 12 months of the sentences for these three charges to run consecutively to the sentence on the first charge.  On Charge 5, possession of an instrument fit for unlawful purpose, the sentence passed by the judge was 6 months’ imprisonment, to run consecutively to the sentence on Charge 1.  The overall sentence was 36 months. 

2. All the charges related to events that took place in the evening of 9 December 2004.  The applicant was D2 at trial, and D1 and D3 faced Charge 1 together with the applicant.  D1 also faced Charge 6 for handling stolen goods.  The attempted theft under Charge 1 was an attempt to pickpocket.  The stolen goods under Charges 2, 3, 4 and 6 were stolen mobile phones.  The subject matter of Charge 5 was a flick knife.

3. All the three defendants are Mongolians who were visiting Hong Kong when the offences were committed.  

4. The prosecution evidence was that the applicant arrived in Hong Kong in the earlier part of 9 December 2004.  Police officers observed that the three defendants were acting suspiciously in the vicinity of Granville Road and Cameron Road, Tsimshatsui, Kowloon.  The officers followed them and saw that the applicant and D3 followed PW1 and his girlfriend very closely at their back.  D1 then leaned forward and reached out his right arm between the applicant and D3 in front of him and pulled the string attached to the wallet in PW1’s rear pocket.  PW1 turned around and the three defendants walked away.  After the three defendants were intercepted by police officers, three mobile phones, a multi-media card and one flick knife, the subject matter of Charges 2 to 5 were found on the applicant.  Another mobile phone was found on D1.

5. D1 and D3 pleaded guilty to their respective charges.  The applicant denied the charges that he faced. 

6. The applicant did not give evidence but called D1 and D3 to give evidence on his behalf.  D1 admitted his own guilt and denied that D3 and the applicant were involved.  D3 gave evidence similar to that of D1 and he explained that although he did not participate in D1’s attempt to pickpocket, he pleaded guilty because he wanted a reduced sentence, so as to return home earlier. 

7. The judge analysed the evidence very carefully and came to the conclusion that the applicant and D3 were acting as a block, getting very close to the back of PW1, for D1 to pick PW1’s pocket.  The owners of the mobile phones under the charges also gave evidence.  Each of the female owners of the mobile phones under Charge 2 and Charge 3 respectively told the judge that she found her mobile phone missing in the evening of 9 December 2004, just a couple of hours before the arrest of the defendants.  The owner of the mobile phone under Charge 4 told the court that he found his mobile phone and a multi-media card missing on 19 November 2004.  Based on the proximity of timing between the loss of the two mobile phones under Charges 2 and 3, the judge drew the only reasonable inference that the applicant must know or believe the three mobile phones had been stolen.  The fact that the three mobile phones that had been stolen from three different persons were at the same time in the possession of the applicant also strengthened the inference.  

8. In his grounds of appeal, the applicant tells his own version of the events in the evening of 9 December 2004.  However, he had elected not to give evidence before the judge.  The evidence given by D1 and D3 was carefully analysed by the judge who refused to accept it. 

9. There is no sound basis for this Court to interfere with the judge’s findings of fact, especially bearing in mind that he had the advantage of observing the witnesses when they gave evidence before him.  Moreover, I am not able to discern any mistake in the judge’s conclusions. 

10. In the circumstances, I refuse leave to appeal against conviction. 

11. As far as sentence is concerned, the applicant in his grounds of appeal and his oral address to me this morning talks of the suffering by his family because he was the breadwinner for his ailing mother, wife and young daughter.  Apart from mental anguish his family members are undergoing because of his inability to return home, he says that they are also in financial difficulties and will likely face the loss of their home.

12. While one has a lot of sympathy with the family members of the applicant, for being unable to have his company and financial support while he is in jail in Hong Kong, their predicament bears little as a mitigating factor for sentence to be reduced. 

13. The applicant also mentions that he is not familiar with local culture, customs and traditions and due to the language barrier, he cannot talk to CSD officers and cannot communicate with other inmates to explain his problems.  While onerealises that a foreigner who is jailed in Hong Kong may find some hardship because he is not familiar with local circumstances and his family members cannot easily visit him or correspond with him, I am not persuaded that this hardship would constitute a factor for reducing sentence. This is consonant with the views taken by the Court of Appeal in HKSAR v Hong Chang Chi [2002] 1 HKC 295 and HKSAR v Rodriguez [2002] 2 HKC 521.  Any person who comes to Hong Kong to commit an offence takes the risk of being caught and of spending an appropriate period of time in jail in Hong Kong if he is caught.  If he embarks upon any criminal activity in this city, he must accept the risk and the consequences.

14. The sentence imposed by the judge was in no way excessive for the offences of which the applicant was convicted after trial.  Of course, he did not have the benefit that D1 and D3 enjoyed of a one-third discount given for their guilty pleas.

15. In the circumstances, I also refuse leave to appeal against sentence.

16. I advise the applicant that he may make a fresh application within 14 days to this Court.  However, I warn the applicant that if this Court that deals with the fresh application comes to the view that the fresh application has no merit, it may order a loss of the time he has spent in custody to be taken away from the counting of his service of the imprisonment, and that the Court can increase sentence.