HKSAR v. SODNOMDASH SEREENEN ALSO KNOWN AS TULGA SEREENEN

DCCC 1113/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1113 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to, first charge, attempted theft, and five charges of breach of a deportation order. The attempted theft took place on 6 November last year and the five charges involving a breach of deportation order involved the following dates: 10 September, 15 September, 18 September, 18 October and 6 November 2015, the last date being the offence date for Charge 1.

2.  The facts of this case are straightforward.

3.  The defendant entered a restaurant on the 1st floor of the Luk Kwok Hotel in Wanchai.  That restaurant can only be accessed by an escalator from the ground floor to the 1st floor.  I am sure that the defendant was going up to that restaurant to look for a target.

4.  On CCTV footage later viewed, he enters the restaurant at 7.58 pm and between 8.07 and 8.13 pm he is seen walking around the restaurant.  At 8.13 pm he approaches the victim’s chair from behind and tries to take her handbag, which was hung on the back of the chair.  The victim’s vigilant family member spotted the defendant and foiled the attempt to steal the victim’s handbag. 

5.  A report was then made to the police and, under caution at the scene, the defendant admitted attempting to steal a handbag out of greediness.

6.  In my view, this was not an opportunistic attempted theft.  I am sure the defendant intended to go upstairs to this busy restaurant to look for a target with intent to steal.

7.  That is the facts of Charge 1.

8.  For Charge 2 to 6, the defendant has admitted entering Hong Kong five times illegally.  His entry was illegal because there was a deportation order issued in December 2004, which remains in force.  That deportation order came after a conviction for an attempted pickpocketing offence, where in June 2004 defendant was convicted and sentenced to 8 months’ imprisonment in Kowloon City Magistracy.

9.  Between 2004 and 2015, the defendant, at home in Mongolia, changed his name and obtained a new passport.  There is no good explanation given why this was done, but it is the experience of this court that such an action is done to defeat the purposes of a deportation order in force and enter Hong Kong again under the guise of a new identity.

10.  I have heard full mitigation put forward on behalf of the defendant by Mr Ng.  He has said all he can say on behalf of the defendant.

11.  The defendant, as I have said, has one previous conviction in Hong Kong in 2004.

12.  He is now 51 years old and in Mongolia has a wife and three children ranging between 10 and 21 years old.  All are dependent on the defendant financially.

13.  I have been told the defendant has been out of work for some time and is not in great health, suffering from his stomach problem.  I have also been told that his wife is suffering from bone cancer.

14.  Sad as that may be, these conditions existed before the defendant came to Hong Kong to commit these offences.

15.  The defendant has written a letter of mitigation to the court, explaining that he went to Macau and lost money - I assume gambling - and came here to Hong Kong because he needed money and committed these offences.  In his letter he admits coming to Hong Kong to commit an offence.

16.  He also expresses remorse in his letter and asks for leniency, telling the court he is most worried about his family who rely on him.

17.  Mr Ng for the defence has produced three authorities:  two Magistracy appeals relating to similar charges, where sentences have been upheld on appeal, as well as HKSAR v Sondi Nudin also known as Ari Sanjaya, CACC 147/2015.  The facts of that appeal are very similar to the facts here and the charges here.  The sentence in that case was upheld on appeal.

18.  For Charge 1, the tariff I consider relevant is that expressed by the Court of Appeal in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  There, the Court of Appeal says a starting point of between 12 to 15 months for a first-time offender, a pickpocket, would be appropriate.

19.  I find the facts in this case akin to pickpocketing.

20.  The defendant is not a first-time offender, but I do take into account that offence was in 2004.

21.  However, I also take into account that he has come to Hong Kong to commit an offence.

22.  The tariffs for breach of deportation order, I have taken into account the authority produced by the defence as well as HKSAR v Joned Asri also known as Tri Wahyu, CACC 345/2012.

23.  The Court of Appeal has also said time and time again that, in this scenario, sentences for Immigration offences should be served consecutively to other sentences for other charges, and there I have referred myself to HKSAR v Kong Yung & Anor [1999] 1 HKC 395.

24.  Defendant, please stand up.

25.  I have taken into account your plea, facts of the case, mitigation put forward, and the letter that you wrote yourself.

26.  After considering all those factors:

(1) for Charge 1, I take a starting point of 15 months’ imprisonment;

(2) for Charge 2 and 3, I take a starting point of 24 months’ imprisonment;

(3) for Charges 4 and 5, I take a 30-month starting point;

(4) Charge 6, I take a 33-month starting point.

27.  You have pleaded guilty to all charges. Therefore, you are entitled to a discount of one-third from those starting points. 

28.  After that discount is applied:

(1) for Charge 1, you are sentenced to 10 months’ imprisonment;

(2) Charge 2, 16 months’ imprisonment;

(3) Charge 3, 16 months’ imprisonment;

(4) Charge 4, 20 months’ imprisonment;

(5) Charge 5, 20 months’ imprisonment;

(6) Charge 6, 22 months’ imprisonment.

29.  I have taken into account the totality principle, but I have also taken into account the norm, which is the view expressed by the Court of Appeal.

30.  I therefore order Charges 2 to 6 to be served concurrently, but Charge 2 to 6 to be served consecutively to Charge 1.

31.  Therefore, it is a 10-month sentence added to a 22-month sentence, which is a total of 32-month term of imprisonment.

COURT: Do you understand that sentence?

DEFENDANT: Understand.