HKSAR v. BANZRAGCH MUNKHBAATAR AND ANOTHER

DCCC 221/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 221 OF 2017

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Reasons for Sentence

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1.  The 1st defendant has pleaded guilty to three offences of theft, and the 2nd defendant to two offences of theft.

2.  The facts established in the case show that the 1st and 2nd defendants were found together in a rear lane near Nathan Road in Kowloon on the late evening of 24 December 2016, Christmas Eve.  Upon search of the 1st defendant, four mobile phones were found inside an orange rucksack carried by the 1st defendant.  Upon search of the 2nd defendant, two mobile phones were found upon him in his trousers pocket.

3.  The police had asked the defendants to unlock the phones, but they were unable to do so.  In respect of these phones, the owners of three of the phones found in the 1st defendant’s possession were located, and both owners of the two phones found in the 2nd defendant’s possession were located.  What the victims say is that they discovered their phones to be missing during the evening of 24 December 2016.  All of them appear, during that evening, to have been in Tsim Sha Tsui.  But what they can say and what I can adduce from the facts is the time at which they discovered that their phones had gone missing; had in fact been stolen.  For the victim in the 1st offence, that was as late as 11.30 in the evening in a place called the Sun Arcade; for the second victim, it was again around about 11 o’clock in the evening at the Science Museum; for the third victim, in the early hours of Christmas Day at the Clock Tower in Tsim Sha Tsui; for the fourth victim, late on Christmas Eve near the Cultural Centre; and for the fifth victim, late on Christmas Eve near the Clock Tower.

4.  Of course, the facts cannot show the actual locations where the items were stolen, and that is represented in the charges, which do not specify the actual location.

5.  The 1st defendant admitted he had stolen three of the mobile phones found on him.

6.  As far as the defendants’ antecedents are concerned, they are both Mongolian citizens.  They are both of clear record. The 1st defendant says he is self-employed in Mongolia, earning $3,000 a month.  He is married, with a daughter and two sons.  The 2nd defendant is self-employed also.  He is married, with one daughter.  Their exact status in Hong Kong is not specified, nor is their date of entry.

7.  As far as  mitigation is concerned, both defendants pray in aid their pleas of guilty and ask for lenient sentences.  It is their intention, as I understand it, to return to Mongolia on completion of their sentences of imprisonment in Hong Kong.

8.  As far as sentencing these particular thefts is concerned, what can be gleaned from the facts is that the mobile phones were lost from the person of the victims, be it stored in handbags or in rucksacks or the like.  So from that, the court, I believe, can safely deduce that these would be classified as pickpocketing type offences, and the general principle of sentencing is that for a person of clear record convicted of this offence after trial, the starting point for sentence would range between 12 to 15 months’ imprisonment.  That starting point for sentence can be subject to being adjusted upwards for various aggravating factors.

9.  On the face of it, given that these defendants are of clear record, the only possible aggravating factor could be that they were stolen in a crowded area recoursed to by the public.  However, I find that must, of course, be proved beyond reasonable doubt, as any factor in a criminal hearing.  Given that the location of the thefts is not specified and cannot be, I do not believe that that aggravating factor can effectively be deployed in this case.  There are no other aggravating factors that I can discern here on the evidence I have.

10.  Thus, the starting point for sentencing in respect of each of these charges for each defendant should range between 12 to 15 months’ imprisonment.  These are theft offences involving the theft of valuable items, namely mobile phones, on the evening of Christmas Eve.

11.  I consider the starting point for sentence of 15 months’ imprisonment on each charge against each defendant as the appropriate starting point.

12.  The defendants have pleaded guilty and have always indicated their plea of guilty, so they are entitled to a one‑third discount from that starting point for sentence.

13.  That means that the sentence on each charge from 1 to 5 will be one of 10 months’ imprisonment.

14.  The offences were committed on the same day, apparently, but were clearly not committed at exactly the same time, so these sentences are capable of being served consecutively, or at least partly consecutively.  Given that is the case, I must consider and apply what is the overall total sentence, or the appropriate overall sentence, for these offences.

15.  What I shall do is order the sentences to be served as follows.  I shall order, in respect of the 1st defendant, that the sentences on the 2nd and 3rd charges be served concurrently to one another, but consecutively to the 1st charge.

16.  That gives an overall total of 20 months’ imprisonment for him.

17.  As far as the 2nd defendant is concerned, I shall order that 5 months of the sentence on the 5th charge be served consecutively to that of the sentence on the 4th charge, giving an overall total of 15 months’ imprisonment. 

18.  That will be the sentence of the court.