HKSAR v. ERDENEBAT BOLORJARGAL AND ANOTHER

DCCC 115/2020

[2020] HKDC 667

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 115 OF 2020

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Reasons for Sentence

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1.  The defendants have pleaded guilty to a single offence of theft on 1 December 2019. It was committed at the station concourse of the MTR at Mongkok. The offence itself can be described as pickpocketing and appears to be a joint enterprise by the two defendants and another man, who was not located.

2.  The Summary of Facts contains a detailed exposition of how that took place.  The offence occurred in the evening of 1 December 2019.  It was seen in its entirety by police officers in plainclothes.  Their observation supports the conclusion that the three men observed, including the two defendants, acted in what could be described as a joint enterprise to steal the iPhone from the victim.

3.  The two defendants were arrested shortly after and the iPhone was recovered.  The third person managed to escape after a struggle.

4.  The facts also show that the 1st and 2nd defendants are what is described as Form 8 holders.  Both defendants admit in the facts that they stole the iPhone.

5.  The antecedents of the defendants show that they are, I understand, both aged 29.  They both come from Mongolia.  They both entered Hong Kong in 2018(sic) and they each have a previous conviction of a similar nature.  The 1st defendant, on 25 June 2018, sentenced to 12 months for theft, and the 2nd defendant has two offences, the most relevant one being on 13 January 2017, convicted of what is described as theft/pickpocket and sentenced to a total of 14 months’ imprisonment.

6.  The defendants have some mitigation that is put before the court.  The 1st defendant is in fact a university graduate.  He came to Hong Kong and appears to make a non-refoulement claim as a result of a private dispute in Mongolia.  He needed some money for what is described as foot surgery.  The 2nd defendant is a married man with a daughter.  He came to Hong Kong, in fact it was 2011, and applied for asylum as a CAT claimant in 2012.

7.  The sentence to be passed is largely governed by guideline sentencing in this case.  The offence itself could be described as a pickpocketing offence.  In the case of HKSAR v Ngo Van Huy, CACC 107/2004, also at [2005] 2 HKLRD 1, set out a sentencing guideline for pickpocket offences, which establishes a starting point of 12 to 15 months for pickpocketing offences before taking into account aggravating factors.

8.  Now, in order to shorten things, I will indicate that having looked at the facts, I consider in respect of both defendants, there exists four aggravating factors.  One is this:  that it was a joint enterprise theft.  That is clearly established on the facts.  Secondly, that they are both holders of Form 8, which again is another aggravating factor. Thirdly, that they both have a relevant previous conviction, which is a further aggravating factor.  And finally, I consider that the location, although described as uncrowded by police officers, was a location where these kinds of offences are commonly committed and where people are vulnerable to such offences being committed.  And I consider that location is sufficient to establish a further aggravating factor.

9.  That would mean there are four aggravating factors and the court should allocate in my view a figure of three months to each aggravating factor, which will give a total of 12 months’ enhancement of the base sentence.

10.  Looking at the facts of this case, they are, I would describe, unremarkable for a pickpocketing offence.  I would take an initial starting point of 12 months’ imprisonment from the 12 to 15 month range, enhance that by the 12 months for the aggravating factors, which is a figure of 24 months.  That is subject to a one-third discount for each defendant, which will lead to a final sentence of 16 months’ imprisonment for each defendant, D1 and D2.