HKSAR v. TOD ENKHBAYAR

DCCC 415/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 415 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one offence of attempting to obtain property by deception. He has agreed the facts of the case and I convicted him.

2.  The attempt to obtain property involved the attempt to use two credit cards at the Apple Store in Hysan Place in Causeway Bay.  The facts show that the offence occurred on 2 March this year. The defendant had been placed under surveillance by two police officers when he was on an MTR train and they followed him into the Apple Shop in Hysan Place in Causeway Bay.  He approached the staff there in order to attempt to purchase what is described as a 15 inch Mac Book Pro with a value of $18,888 by use of a credit card.  The attempt to use the credit card in the machine for authorisation was unsuccessful.  The defendant then produced another credit card which again the transaction was not successful.  The defendant then left the shop. 

3.  He returned again asking to purchase an iPhone 6S Plus for just over $7,000 and handed a credit card for payment.  It was one of those that had been produced previously and the shop refused to accept it. The defendant then left the shop. 

4.  He was arrested by the police officer who had been following him.  They were unable to communicate because of the language problem.  The defendant was found to be from Ulannbaatar, he is a Mongolian, and arrived in Hong Kong on 25 February 2016.  The facts also show that the attempted transactions were recorded on CCTV camera.

5.  As far as the defendant’s background is concerned, he is currently aged 56.  He is from Mongolia.  He studied to university level in Russia and was employed as an engineer.  He is described as not being a drug addict.  He has family in Mongolia.  The mitigation shows that he has of course pleaded guilty today.  After his arrest I am told he suffered depression in prison and has his gallbladder removed.  He has a mother currently aged 96.  His wife is in Mongolia, there are two daughters who are grown up. I am told this is the first time the defendant has come to Hong Kong and his role in this offence was described as being the foot soldier, he is the person who is delegated to try and attempt to get the goods. 

6.  In mitigation it is said that he should be entitled to a full one-third discount due to the date on which the case first came before the District Court; that given the item the defendant tried to obtain and the use of only two credit cards this could be classified as a small scale operation.  Also because of the poor quality of the credit cards no actual loss was suffered by the company concerned.

7.  The defendant, I note, came to Hong Kong on 25 February and this offence occurred on 2 March.  I do believe in that situation it is impossible for the court to draw the inference beyond a reasonable doubt that the defendant’s intention of coming to Hong Kong was to commit this crime.  So that aggravating factor is not established to a criminal standard on the evidence I have before me.

8.  Looking at the starting point for sentence in this case and given the value of items sought of the only two credit cards concerned, this would appear to fall within the definition of a small scale credit card fraud as outlined in the case of Lam See Chung, Stephen where a starting point of 3 years’ imprisonment is considered to be appropriate for that category of crime.  There are, as I said, no factors that aggravate that beyond the starting point of 3 years’ imprisonment.

9.  The defendant is entitled to a one-third discount from that sentence.  There are no other factors that mitigate the offence.   So taking that into account, a starting point of 3 years’ imprisonment, a one-third discount, leads to a sentence of 2 years’ imprisonment for this offence.