HKSAR v. TUMENDELGER BYAMBADELGER

DCCC 362/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 362 OF 2015

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REASONS FOR SENTENCE

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1. Defendant, you have pleaded guilty before me to four charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2. In relation to Charge 3, the offence you committed is commonly known as “pickpocketing”, while in relation to the three other charges (ie Charge 1, Charge 2 and Charge 4), the offences you committed are commonly known as “theft by finding”.

3. According to the facts, which you have admitted, briefly on 15 March 2015 at around 4.20 am, when the victim in relation to the pickpocketing charge, Lam Wing, was dancing at a bar known as “Graffiti”, situated Ground Floor, Ho Lee Commercial Building, Nos 17 to 22 Lan Kwai Fong, Central, Hong Kong, she felt her bag being bumped.  She checked and found her mobile phone missing.  She turned round immediately and saw you leaving quickly from her. 

4. Miss Lam then alerted her friends and they together subdued you a few metres away from the entrance of the bar.  Upon checking, Miss Lam’s mobile phone was found tucking at the back of your waist and this case was reported to the police.

5. After the police arrived, they found, firstly, two other mobile phones (an iPhone 5S and a LG G3 mobile phone) inside your left jacket pocket.  You were immediately arrested.

6. At the time of your arrest, you had with you cash of around RMB54 and HK$27.20.

7. Later, when you were brought back to the police station during the body search, another mobile phone (an iPhone 6) was found inside your left shoe.

8. The police managed to contact the owners of those other three phones and they were Madam Li Wanyu, Madam Yeung Hong Yi, May and Madam Kwok Hoi Shan. They all visited the same Graffiti bar in the early hours on 15 March 2015 and during the time there they all found their phones either stolen or missing and reports were made to the police.

9. When later the police presented these ladies with the phones found on you, they all could identify and confirmed that the phones belonged to them.

10. During the record of interview, which was video recorded, with the assistance of a Mongolian interpreter, you stated that you travelled from Mongolia to Beijing and then to Shenzhen and finally arrived in Hong Kong by train on 13 March 2015.  You then took ferry to Hong Kong Island from Tsim Sha Tsui in the morning of 14 March 2015.

11. You told the police that you had picked up all the phones on the floor of the bar, with exception of one on the pavement.

12. This morning, however, through your solicitor, Mr Kwong, you admitted that, in relation to Charge 3, you in fact had committed pickpocketing but still maintained the explanations that in relation to those other three phones you just picked two up at the dance floor and one at the pavement.

13. In this case, the prosecution is contented to accept your explanation and your guilty plea in relation to the other three “theft by finding” offences, on the basis that you just picked up the phones instead of pickpocketing them.

14. I have in fact queried the prosecution’s decision because of the unlikelihood of coincidence that you would have picked up the three phones in a row in the same vicinity within a few hours in Lan Kwai Fong, and certainly I have also reminded the prosecution that evidence could be admitted under the “similar fact” rule if explanation of it on the basis of coincidence would be an affront to common sense or would be against all probabilities.

15. However, having enquired with the prosecution, I have the impression that obviously they have their own perspective of the evidence or their assessment of the evidence and, despite the highly suspicious circumstances that I have spelt out, they still hold on to the view and also the decision not to challenge your explanations.

16. I must say that it is not without some reluctance that I have decided not to hold a Newton hearing in this case.  However, given the prosecution’s stance on the matter, in the end I doubt that anything would be gained by holding such an inquiry through the cross-examination and/or the submission by the prosecution.

17. I must say, in this sense, defendant, you should consider yourself very lucky.

18. In passing sentence, I have carefully considered everything that is said on your behalf by Mr Kwong, your solicitor assigned by the DLA, and also the sentencing authorities in relation to pickpocketing cases.

19. In particular, in the case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal had already laid down the guideline sentence for pickpocketing after trial is 12 to 15 months’ imprisonment for a first-time offender, where there are no aggravating features.

20. What are the aggravating features?  According to the Court of Appeal, for example, where the offence is committed in a place in which the public is at a particular risk, such as a crowded area.

21. You are now aged 24 and you are a Mongolian national.  You have a clear record in Hong Kong.  As you have said to police, you came to Hong Kong as a tourist.  You first came to Beijing from Mongolia and then to Shenzhen and finally arrived in Hong Kong by train.

22. Mr Kwong had also told the court that you have two young siblings, two sisters, whom you are going to take care:  one is aged 17, working as a waitress and another is 13 years old, still a student.

23. Mr Kwong told me that you actually travelled with a friend to Beijing and to Shenzhen and, before you came to Hong Kong to have a look, you had with yourself RMB2,000.  While in Hong Kong you had rented a place in Chungking Mansion for accommodation and spent some monies on other things.

24. On the night in question, I was told you came to Lan Kwai Fong and lingered in the bar in question for a few hours, basically to have a look.  As you have explained, which has been accepted by the prosecution, during that period you had an unexpected windfall by coming across three missing phones, all of which were of high values and when asked why you still saw fit to commit a pickpocketing offence, Mr Kwong just said that it was driven by greed.

25. The subject matter of the stolen property in this case, be it “pickpocketing” or “theft by finding”, are all valuable smart mobile phones, three of which are new model iPhone - iPhone 5S or iPhone 6 - and the other remaining is an LG smartphone, all of which are of considerably more values, with about HK$4,000 to HK$7,000 in market value.

26. I am satisfied that the initial starting point after the trial should therefore be 15 months’ imprisonment, because, according to the Court of Appeal case in HKSAR v Chiu Suet Yee Angel, CACC 105/2010, the Court of Appeal had said that obviously the value of the properties stolen is one of the factors which can decide the initial starting point; (also see another case, HKSAR v Liu Linfeng, CACC 206/2011 (unreported).)

27. As to the value of the stolen properties, mobile phones or smart phones were commonly used by people not only simply as a tool for communication but also storage of confidential and valuable personal data.  The loss or the theft of a smartphone or iPhone to the owner will no doubt not only cause considerable financial loss to them, but also imaginable frustration and inconvenience to these owners.

28. Furthermore, these owners of the iPhone were having fun at the time in the bar dancing and in a crowded bar and they were especially vulnerable to this kind of offence.

29. Furthermore, by reason of the aggravating feature that the present offence was committed in the early hours of Sunday morning in Lan Kwai Fong at a time when the street was well known to be very crowded with people, I am satisfied that the starting point should be increased by 3 months.

30. Mr Kwong had also relied on another case of HKSAR v Gambold [2015] 1 HKLRD 999 to say that, despite the suspicious circumstances of this case, the evidence of this case still falls short of establishing that you came to Hong Kong specifically in order to steal.

31. I have to accept this submission because at the moment, the prosecution is contented that you only committed one pickpocketing and committed the other three theft offences by just picking up the phones on the floor. 

32. Had it been the fact that you were convicted of all the four charges of theft on the basis of pickpocketing, I would have no trouble in finding that you come to Hong Kong specifically for the purpose of committing an offence and you will be liable to be added a further few months from the starting point of the sentence.

33. As the matter stands, in relation to the pickpocketing offence in Charge 3, therefore, I would adopt, as I said, the starting point of 15 months and increase it by 3 months because it was committed in a crowded bar visited by many people.

34. As Mr Kwong has rightly pointed out, the only effective mitigating factor in this case is your pleading guilty, for which you would receive a one-third reduction.

35. Therefore, in relation to Charge 3, the sentence you would receive is 12 months.

36. In relation to Charge 1, Charge 2 and Charge 4, the three other “theft by finding” offences, I will use a starting point of 9 months’ imprisonment, based on what I said about the importance and the value of the smartphones, which are the stolen properties.

37. Because of your plea, all the sentences in relation to the remaining charges will be reduced to 6 months’ imprisonment.

38. All these offences were committed separately with different victims.

39. In principle, I can order that these sentences to be served wholly consecutively.

40. However, because of the totality principle, in the end I decided that for each “theft by finding” offence – ie Charge 1, Charge 2 and Charge 4 - you only need to serve 4 months instead of the 6 months’ imprisonment.  For each of those charges, 4 months’ imprisonment will be served consecutively to the other charges.  In other words, you have to serve an additional 12 months to the sentence you received in Charge 3.

41. The total sentence that you will receive in relation to the four charges would therefore be one of 24 months’ imprisonment. (12 + 4 + 4 + 4 = 24)

42. You have, through Mr Kwong, submitted a letter to me saying that you are remorseful and you want the court to be as lenient as possible so that you can get back to your two younger siblings as soon as possible. 

43. I can only say this to you, defendant, that you should really think twice before committing an offence like this if you are really caring for your two young siblings in Mongolia.

44. This is the sentence.