HKSAR v. ERDENECHIMEG GAN ERDENE

DCCC 133/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 133 OF 2015

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Reasons for Sentence

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1.   D2 pleaded guilty to the offence of theft and was convicted accordingly.  D2’s sentence was adjourned after the conclusion of D1’s trial.  I acquitted D1 of the charge today and now proceeded to sentence D2.

2.   The facts of the case are simple.  At about 2:30 am on 21 January 2015, the victim was drinking outside Big Pizza which was situated at No 5 Lan Kwai Fong, Central.  At that time, the victim kept his mobile phone in his right front pocket of his jacket.  Later, two Mongolian males (D1 and D2), unknown to the victim, approached him and began chatting with the victim.  Two police officers in plainclothes found both defendants acting suspiciously and put them under observation.

3.   D1 and D2 appeared to be drunk.  D2 kept chatting with the victim while D1 kept bumping into the victim.  D1 and D2 then left together in a hurried manner towards the direction of Wyndham Street.  The victim was not aware that the phone was taken away by D1.

4.   The police officers immediately followed the defendants and intercepted them at No 31A Wyndham Street.  The victim also discovered that his phone was missing and gave chase.  Upon search, the stolen phone was recovered from D2’s underpants.  The victim confirmed his stolen property.

5.   Subsequently, in the video-recorded interview, D2 admitted that the stolen property was recovered from him but denied knowing that it was stolen from the victim.  D2 claimed that D1 gave him the phone and asked him to keep it.

6.   D2 is a Form 8 recognisance holder and was allowed to stay in Hong Kong since December 2014.  The value of the stolen phone was estimated to be HK$5,500.

Mitigation

7.   D2 is aged 20 and has had no formal education.  He is now a torture claimant in Hong Kong.  D2 pleaded guilty to the offence of theft which was, as submitted by defence counsel, an opportunistic crime, not organised or planned.  It was a poor decision of D2 when he committed the crime.  Defence counsel submitted two authorities, namely CACC 381/2013 and CACC 265/2013, saying that there was no aggravating factor in this case.  At the material time, which was in the early hours, Lan Kwai Fong was not crowded.  Defence counsel also urged this court to adopt a low starting point.

Sentence

8.   The prosecution submitted two authorities for my reference, namely CACC 45/2013 and CACC 315/2014.  Both cases involved appellants of Mongolian nationality.

9.   In my view, the fact that D2 is an asylum seeker should not be taken as an aggravating factor as he is allowed to stay in Hong Kong temporarily.  But as remarked by the Court of Appeal in HKSAR v Sandagorj Altankhuyag & Another, CACC 45/20213 at paragraph 20, the appellant was a torture claimant and “despite the hospitality extended to him by the authorities and the people of Hong Kong, he chose to abuse that privilege by targeting an area well known as a tourist destination and one that is frequented by significant numbers of tourists and locals alike, in order to steal”. 

10.   I totally agreed with this remark and would say one would wonder if the current asylum-seeking mechanism is being exploited and manipulated.  It seems to me that D2 was leading a leisure life in Hong Kong.

11.   Although I had acquitted D1 of the charge, I believed that D2 was not acting alone.  I am of the view that D2 went to Lan Kwai Fong “deliberately looking for opportunities to steal property” (paragraph 14 of Hong Kong SAR v Wu Tak Chau, CACC 281/2013).  The theft in the present case was not an opportunistic crime as the officers observed that D2 and D1 looked around and paid attention to the handbags carried by passers-by in Lan Kwai Fong.  However, despite the fact that Lan Kwai Fong is a well-known tourist destination, I accepted that, at the material time, it was in the early hours of the day and the place was not crowded.  Outside Big Pizza, only the victim and two of his friends were there at the material time.

12.   It is well accepted that the loss of mobile phone not only causes monetary loss to the victims, it also causes great inconvenience to them.  There is also a possibility that the digital images and/or personal data of the owners of the phone were uploaded to the internet, thereby causing serious invasion of personal privacy.

13.   I have considered the remarks and sentence considerations by the Court of Appeal as promulgated in HKSAR v Ngo Van Huy [2005] Vol 2, HKLRD 1.

14.   D2 is now aged 20 and was not educated. He is single and his family is living in Mongolia.  D2 had one criminal record.  He was sentenced to 7 days for the offence of breach of condition of stay in October 2014.  However, for the present sentencing purpose, I would not take this previous record into account.

15.   Taking all factors into account, I would adopt a starting point of 15 months.  It is a wise decision for D2 to plead to the charge.  For that, he would get one-third discount in sentence, otherwise, he will certainly have to face a longer imprisonment term after trial.

16.   Accordingly, I sentence D2 to a term of 10 months’ imprisonment.