HKSAR v. MYAGMAR OTGONDAVAA (also known as BUMBALAI OTGONDAVAA)

DCCC 283/2024

[2024] HKDC 1866

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 283 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant is convicted on her own plea and agreement to amended Summary of Facts to two counts of breach of deportation order, contrary to section 43(1)(a)  of the Immigration Ordinance, Cap 115 (1^st and 2^nd charge), and two counts of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (3^rd and 4^th charge).

Facts

2.  On 21 December 2006, a deportation order was made against the defendant under the name of BUMBALAI Otgondavaa (“Deportation Order”), requiring her to leave Hong Kong and prohibiting her from being in Hong Kong at any time thereafter.  The Deportation Order was personally served on the defendant on 27 December 2006 and she was subsequently deported on 28 December 2006.

3.  The defendant, being a person in respect of whom the Deportation Order was still in force and in contravention of the Deportation Order, on the strength of another Mongolian passport under the name of MYAGMAR Otgondavaa entered Hong Kong on 12 May 2023 and left on 22 May 2023 (1^st charge), and entered Hong Kong on 8 June 2023 and remained here since then (2^nd charge).

4.  At around 2:30 pm on 13 June 2023, when the defendant walked out from a Uniqlo store in Cityplaza, she triggered off the store’s anti-theft alarm.  Despite the alarm was activated, the defendant still continued to walk away from the store.  A staff of the store gave chase together with her colleague and intercepted the defendant.  The case was reported.

5.  Later, a body search was performed by police on the defendant.  During the search, three jackets, two pairs of trousers and one shirt belonging to Uniqlo Hong Kong Limited (“Goods A”), and five shirts and one pair of trousers belonging to Zara Asia Limited (“Goods B”)  were found in the defendant’s handbag.  The total price of Goods A is $1,644 and that of Goods B was $2,274. There was no sales record in respect of all these items.  The defendant was arrested for theft (3^rd and 4^th Charge).

6.  Subsequently, the fingerprint expert found that the fingerprints of the defendant lifted upon her arrest on 13 June 2023 matched exactly with those of BUMBALAI Otgondavaa who was the subject of the Deportation Order.  The identity of the defendant was confirmed.

Criminal Record

7.  The defendant has 2 previous criminal records involving convictions of 3 charges, one of which is theft and this court was told that it was a shop theft.  The defendant was sentenced to 10 months’ imprisonment in that case.

Mitigation

8.  The defendant is now aged 51.  She was born in Mongolia and was educated up to secondary school level.  The defendant is a widow with 2 adult children as well as a set of twins, aged 17.  She is the sole breadwinner of the family.  It was said that following an accident in 2007, the defendant suffered ill health.

9.  Defence counsel conceded that breach of deportation order is a serious offence and will usually attract a sentence starting point in the range of 18 to 27 months’ imprisonment (HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762).

10.  He also conceded that the defendant in repeated breach of deportation order calls for an enhancement of sentence.  It is said also that a higher sentence starting point must be justified by the gravity of the offence, not merely that it was repeated (HKSAR v Joned Asri, CACC 345/2012).

11.  Defence counsel said the defendant breached the deportation order twice within a short interval of one month.  He said that a sentencing starting point should reflect the fact that deportation order was made 18 years ago and not immediately afterwards that the defendant breached the deportation order. Furthermore, it is submitted that the defendant is not linked to organised crime, nor was it found that she has taken up unauthorised employment in Hong Kong following the breach of deportation order.

12.  Defence counsel submitted that a proper sentencing approach to cases of shop theft was considered comprehensively by Deputy High Court Judge Woo Kwok-hing (as he then was)  in HKSAR v Yang Yan Yun [2014] 1 HKLRD 564, where it was said that:

(a)  There is no fixed starting point for shoplifting cases as the facts vary significantly.

(b)  Even when the court imposes a deterrent custodial sentence on a repeated offender, the starting point should not exceed 12 months.

(c)  The starting point and level of enhancement must be clearly stated in the reasons for sentence.

(d)  For cases involving persistent offender, an enhancement of sentence generally should not exceed one-third of the sentencing starting point.

13.  It was said also that the value of the stolen items is not substantial, and that they were returned and no actual loss was caused to the owners.  It was also said that as the similar conviction of theft was 18 years ago, the defendant should not be considered as a persistent offender.

14.  It is said that the defendant is genuinely remorseful for her conduct.  She has pleaded guilty at the earliest opportunity and therefore should be entitled to full one-third sentencing discount. 

15.  Defence counsel asked this court to adopt a lower sentencing starting point of 18 months for the 1^st charge and 2^nd charge.  It is said also that for the 2^nd charge, albeit that it is a repeated breach, any enhancement to the sentencing starting point ought to be minor. Defence counsel also sought for a concurrent sentence for the 2 charges.

16.  As for the 3^rd and 4^th charge, defence counsel said that even taking into account the defendant’s previous conviction, she is not a repeated shoplifter.  He urged this court to adopt a sentencing starting point of no more than 12 months for the 3^rd charge and 4^th charge.  He also submitted that the 3^rd and 4^th charge form part of the same transaction, and that the sentence should run totally concurrent to each other.  He submitted that any enhancement for the repeated offence of the 4^th charge ought to be minor.

17.  Defence counsel also urged this court to consider the totality principle and order the sentence for the 1^st to 4^th charge to run concurrently.  It was said that there was only a short interval between commissions of the 4 charges, all occurred within 1 month after the defendant’s arrival in Hong Kong.  He urged this court to treat the defendant with leniency.

Discussion

18.  Before sentencing, this court has carefully considered the submissions of defence counsel, the authorities cited, and the letter in mitigation.

1^st and 2^nd Charge

19.  On conviction upon indictment, a person is liable to imprisonment for 7 years. 

20.  Adopting the approach in Joned Asri case, the appropriate sentencing starting point for the 1^st charge is 27 months’ imprisonment.  The defendant has pleaded guilty, she is therefore entitled to full one-third sentencing discount.

21.  As said in the cited case of Cortez Emily Bisoy, the offence is a serious one and the sentence of 18 months’ imprisonment after plea could not be criticised.  The defendant is therefore sentenced to 18 months’ imprisonment for the 1^st charge.

22.  The defendant has shortly after commission of the 1^st charge committed the 2^nd charge.  This is an aggravating feature in sentencing.  Sentencing starting point is enhanced by 3 months.  Again, she is entitled to full one-third sentencing discount by reason of guilty plea. Accordingly, she is sentenced to 20 months’ imprisonment for the 2^nd charge.

3^rd and 4^th Charge

23.  On conviction upon indictment, a person is liable to imprisonment for 10 years. 

24.  The defendant has one previous similar conviction in the year 2006 for which she was sentenced to 10 months’ imprisonment. 

25.  These are shop theft charges.  Items stolen were jackets, shirts or trousers, value of stolen goods for the 3^rd charge was $1,644 and that for the 4^th charge was $2,274. 

26.  From the very poor quality black and white photos of the 3 stolen jackets, the 3 stolen jackets appear identical.  But as this court did not have the sight of good quality photos or the actual exhibits, this court could not be sure that they are identical jackets, which, if true, would be aggravating feature in sentencing.  As the matter now stands, for the purpose of sentencing, the benefit of the doubt would go to the defendant.

27.  The defendant committed these offences shortly after she arrived in Hong Kong in breach of the deportation order.  This makes one suspicious of whether she came to Hong Kong to commit crime.  However, in the absence of compelling evidence, the court will again give her the benefit of the doubt and not sentence her as if she came here for the purpose of committing shop theft.

28.  The stolen items were all found in the defendant’s bag at the time of interception.  They must have been stolen within short intervals before the arrest.

29.  For the 3^rd and 4^th charge, the court will adopt 9 months’ imprisonment as the sentencing starting point.

30.  Sentence of the defendant is discounted by one-third by reason of her guilty plea and her sentence for each of the charges would be 6 months’ imprisonment.

Totality

31.  Considering the totality principle, this court finds that having regard to her overall culpability, the sentence of 31 months’ imprisonment is just and proportionate.  Accordingly, 3 months of the sentence for the 1^st charge is to run consecutive to the sentence for the 2^nd charge, the rest to run concurrently.  2 months of the sentence for the 3^rd charge is to run consecutive to the sentence for the 4^th charge, the rest to run concurrently.

32.  Commission of the 2^nd charge offence obviously add to the culpability of the defendant in commission of the 1^st charge offence and likewise, commission of the 4^th charge offence adds to the culpability of the defendant in commission of the 3^rd charge offence.

33.  Sentence for the 1^st and 2^nd charge and sentence for the 3^rd and 4^th charge are to run totally consecutive to each other.  These two sets of charges are totally different in nature.

34.  The defendant is therefore sentenced to a total of 31 months’ imprisonment.