HKSAR v. TSAGAACH BAATAR AND ANOTHER

DCCC 741/2025

[2026] HKDC 801

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 741 OF 2025

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REASONS FOR SENTENCE

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Introduction

1.  There are two defendants in this case, involving a total of three charges.  D1 and D2 jointly face one count of theft, contrary to section 9 of the Theft Ordinance (Cap. 210), and one count of attempted theft, contrary to section 9 of the Theft Ordinance (Cap. 210)  and section 159G of the Crimes Ordinance (Cap. 200)  (Charges 2 and 3 respectively).

2.  D2 alone faces a further count of theft, contrary to section 9 of the Theft Ordinance (Cap. 210)  (Charge 1).  Both defendants pleaded guilty to the respective charges and accepted the facts of the case, and they were accordingly convicted.

Facts Admitted

3.  This case concerns the theft of a tourist’s wallet and the subsequent use and attempted use of the stolen bank cards by the defendants.

4.  Both defendants are Mongolian nationals who travelled together in Hong Kong.

Charge 1 – Theft of the Wallet (D2)

5.  On 6 February 2025, D1 and D2 were at the Peak Galleria where a Bulgarian tourist was carrying a wallet containing two bank cards and other personal items.  CCTV footage shows D1 and D2 in close proximity to the tourist in the crowded mall with at least 50 persons.

Charge 2 – Use of the Stolen Bank Card at COACH (D1, D2 and another person unknown)

6.  At about 1910 hours the same evening, D1 went to the COACH store at the Peak Galleria and used one of the stolen bank cards to purchase three handbags valued at HK$6,675. CCTV captured D1 making the transaction.

7.  At about 1935 hours on the same day, the Bulgarian tourist realized her wallet was missing.  The case was reported.

Charge 3 – Attempted Use of the Stolen Bank Card at CHANEL (D1, D2 and another person unknown)

8.  Shortly afterwards, at about 1955 hours on 6 February 2025, D1 attempted to use the other stolen bank card at the CHANEL boutique in Sogo, Causeway Bay, to buy 5 bottles of perfume, one plastic bag and 3 skin care products totalling HK$13,601.  The transactions were declined. CCTV shows D2 and an unidentified woman waiting nearby.

Arrest and Caution

9.  On the following day at about 1240 hours, both defendants were arrested at the Airport after having been observed acting suspiciously at Hong Kong Station.  A search of their guesthouse rooms subsequently recovered the white sling bag seen on CCTV and the three COACH handbags purchased with the stolen card.

Video-recorded interviews (VRI)

10.  In the subsequent VRI, D1 admitted, inter alia, that D2 had given him two bank cards on the material date, that he knew the cards belonged to another person, and that he used one of them to purchase the COACH handbags.  He further admitted attempting to make a purchase at CHANEL with the other card, knowing it was wrong, and that he later discarded both cards.  He also accepted that he gave one of the COACH handbags to D2 and identified himself in the CCTV footage.

11.  In his own VRI, D2 admitted, inter alia, that he had arrived in Hong Kong with D1 on 4 February 2025.  He accepted that he stole a wallet from another person’s backpack at the Peak, that the wallet contained two bank cards, and that he handed those cards to D1 before discarding the wallet and its remaining contents.  He confirmed that D1 used the stolen cards to purchase the COACH handbags, that D1 gave him one of the bags, and that he too identified himself in the CCTV footage.

Personal Background and Mitigation

D1

12.  D1 is 45 years old and he came to Hong Kong on 4 February 2025 for sightseeing and had originally intended to travel onward to Macau before returning home.  He is a Mongolian national with limited education and worked as a taxi driver, earning a modest income to support his two young children and elderly parents.

13.  Mr Ah-Weng, Counsel for D1, submitted that D1 and D2 were acquaintances, and the accommodation in Hong Kong was arranged by D2.  D1 had consumed some alcohol on the day of the offences and acted foolishly in becoming involved in D2’s activities.  He was not involved in the theft of the credit cards in Charge 1.

14.  Upon arrest, D1 immediately admitted his wrongdoing and has expressed genuine remorse.  Both offences occurred on the same evening and were impulsive rather than part of any sophisticated or prolonged operation.  It was submitted that D1 accepts responsibility for his actions and understands that a custodial sentence is inevitable.  He nonetheless prays for leniency so that he may return home as early as possible after serving his sentence.

15.  D1 has one previous conviction for shop theft in 2013.

D2

16.  D2 is 45 years old and a Mongolian national. He arrived in Hong Kong on 5 February 2025 with D1 and stayed at a guesthouse arranged for their short visit.  He has a wife and four children in Mongolia, and had been working as a self-employed butcher before his arrest.

17.  Mr. Turnbull, counsel for D2, submitted that D2 made full admissions in his cautioned interviews, including acknowledging his involvement in the theft of the wallet and the subsequent use and attempted use of the stolen bank cards.  He has pleaded guilty at the earliest opportunity and has expressed remorse for his conduct.

18.  It was submitted that the offences were committed within a short period on the same evening and were opportunistic rather than sophisticated.  The stolen wallet contained limited property, and the three COACH handbags purchased with the stolen card were all recovered.  The attempted transaction in Charge 3 was unsuccessful and caused no financial loss.

19.  D2 has been in custody since his arrest in February 2025.  He understands that a custodial sentence is inevitable but prays for leniency, particularly in light of his early admissions, his clear record, and the fact that the offences were committed over a brief period and lacked sophistication.

20.  D2 has no previous criminal record in Hong Kong.

Sentencing Considerations

21.  I have carefully considered the mitigation advanced by both counsel, together with the authorities relied upon.  Having regard to the sequence in which the offences occurred, I propose to deal first with the sentence for D2.

D2

Charge 1 (D2)

22.  This charge concerns the theft of the wallet containing two bank cards.  The offending was carried out by way of pickpocketing. In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal laid down sentencing guidelines for pickpocketing offences.  For a first-time offender acting alone, the appropriate starting point is between 12 and 15 months’ imprisonment.  The Court further identified a number of aggravating features, including the use of a weapon, the commission of the offence in a crowded public place where members of the public are at particular risk, and the involvement of more than one offender or an organized group.  Where such features are present, an upward adjustment to the starting point may be warranted.

23.  Against that background, the Court of Appeal has repeatedly emphasized that pickpocketing is a very serious offence.  Such offending not only causes direct financial loss to the victim, but may also result in the loss of identity documents, credit cards and ATM cards, causing significant inconvenience and disruption to the victim’s daily life.

24.   In the present case, there is no evidence that D2 used any weapon or tool in the commission of the offence.  He acted alone, and the offending does not appear to have been carried out in a professional or organized manner.  Taking these matters into account, I adopt a starting point of 12 months’ imprisonment.  An upward adjustment of 3 months is warranted because the offence was committed in the busy and crowded Peak Galleria, a location where members of the public are at particular risk. A further upward adjustment of 3 months is justified as D2 came to Hong Kong as a visitor and committed the offence within two days of his arrival.  The adjusted starting point is therefore 18 months’ imprisonment.  D2 pleaded guilty at the first reasonable opportunity and is entitled to the full one-third discount.  Applying that reduction results in a sentence of 12 months’ imprisonment for Charge 1.

Charge 2 and Charge 3 (D1 and D2)

25.  Charges 2 and 3 concern the use and attempted use of the two stolen bank cards.  Both defendants were jointly charged and acted together with another person unknown throughout the commission of these offences.  The Court of Appeal has repeatedly emphasized, including in HKSAR v Lam See Chung, Stephen [2013] 5 HKLRD 242 and HKSAR v So Wah (CACC 323/2011), that the dishonest use of a stolen genuine credit or bank card is no less serious than the use of a forged card.  The gravity of such offending lies in the impact on the integrity of the credit card system and the actual or potential financial loss that may result.

26.  I also refer to HKSAR v Li Chi Yat (CACC 189/2018; [2019] HKCA 458).  In that case, the appellant pleaded guilty to four offences involving the theft of a credit card, one completed deception, and two attempted deceptions using the same card. He acted alone and was not part of any joint enterprise.  The Court of Appeal held that a starting point of three years’ imprisonment for the deception offences was manifestly excessive, and substituted a starting point of two years for each of those charges, while upholding the nine-month starting point for the theft of the credit card.  The Court further confirmed that part of the sentence for the theft should run consecutively to reflect the distinct criminality involved, resulting in a total sentence of 19 months’ imprisonment.

27.  I am mindful that the defendants in the present case are charged with theft rather than obtaining property by deception, as in Lam See Chung and Li Chi Yat.  However, the authorities make clear that where the offending consists of the dishonest use of another person’s bank card to obtain goods, the culpability is not materially different.  In my view, the same sentencing considerations identified in cases such as Lam See Chung and So Wah are therefore applicable.

28.  In the present case, the offending was deliberate, coordinated and involved both defendants acting together.  D1 was the person who presented the stolen cards and conducted the transactions, while D2 was present and participated in the joint enterprise.  The defendants targeted high-value luxury goods and carried out two separate acts within a short period.  This type of offending is inherently serious and calls for deterrent sentences.

29.  For Charge 2, D1 successfully used one of the stolen cards to purchase three COACH handbags valued at HK$6,675.  This was a completed transaction involving a substantial amount.  For Charge 3, D1 attempted to use the other stolen card at CHANEL to purchase nine items worth HK$13,601.  Although the transactions were declined, the criminality of the attempt is broadly comparable to that of the completed offence, as the essence of the wrongdoing lies in the dishonest use of another person’s bank card.

30.  While I have taken into account the sentencing approach in Li Chi Yat, the present case is more serious, involving two defendants acting together, the use of two stolen bank cards belonging to the same victim, and offending committed shortly after their arrival in Hong Kong as visitors.  Given the similarity in the nature, seriousness and circumstances of the two offences, and their commission within a short period as part of the same course of conduct, I consider that a starting point of 30 months’ imprisonment is appropriate for each charge.

31.  As earlier noted, D1 has one previous conviction for shop theft in 2013. Given its age and the relatively minor nature of that offence, I do not regard it as an aggravating factor and do not propose to increase the sentence on that account.

32.  As both defendants pleaded guilty at the first reasonable opportunity, they are entitled to the full one-third discount.  Applying that reduction to the starting point of 30 months results in a sentence of 20 months’ imprisonment for each of Charges 2 and 3.

33.  I now turn to consider the totality principle.

34.  Charges 2 and 3 were committed on the same day using the two bank cards stolen from the Bulgarian tourist, and form a single course of dishonest conduct.  I therefore order that the sentences for Charges 2 and 3 are to run concurrently, resulting in a total of 20 months’ imprisonment.

35.  Therefore, D1 is sentenced to 20 months’ imprisonment.

36.  In relation to D2, the theft of the Bulgarian tourist’s wallet, although arising from the same sequence of events, was a separate act of dishonesty and of a different nature from the subsequent use and attempted use of the stolen bank cards.  As the Court of Appeal observed in Li Chi Yat at paragraph 27, “the theft of the credit card was a separate and distinct criminal act… and therefore warranted a partially consecutive sentence to appropriately reflect the true culpability of the appellant”.  Applying the same principle here, I consider that a total sentence of 23 months’ imprisonment is sufficient to reflect D2’s overall criminality.  To achieve that total, I order that 3 months of the 12-month sentence for Charge 1 shall run consecutively to the concurrent sentences for Charges 2 and 3, resulting in an aggregate sentence of 23 months’ imprisonment.