HKSAR v. MONKHOR GANTUGS

DCCC 39/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 39 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to six charges of burglary.

2.  The offences follow a similar modus operandi in that the defendant enters office premises opportunistically, generally when a person is either entering or leaving those premises.  Whilst he is inside the premises, he takes items such as cash from wallets and items of technology such as iPhones or MacBooks.

3.  The offences range from March 2015 to September 2015 and form a series of offences, and the total value of the goods and cash taken is in the region of $60,000.

4.  The details of those individual offences are agreed by the defendant in the Summary of Facts, but briefly, they show that the first offence occurred on 2 March 2015 at office premises in Wan Chai, where the defendant took a MacBook Air laptop valued at about $10,000 from the victim, who had left that unattended in her room in her office, and the CCTV recording showed the defendant waiting outside in the lift lobby and then waiting until the door was open and following a person who had an access card into the premises inside.

5.  The third offence, Charge 3, to which the defendant has pleaded guilty, occurred on 16 April at around lunchtime. On that occasion, property was stolen valued at about $1,325 from an office, and the items were stolen from a wallet which was inside a handbag.  CCTV again showed the defendant waiting at the lift lobby outside and waiting until the entrance door to the office has been opened before entering.

6.  The 4th charge occurs on 29 April 2015, involving items taken from a handbag left in an office in Kowloon.  Cash of about $2,000 was taken, along with some other items, and the defendant was shown waiting in the lift lobby outside, waiting till a person opened the door, and entering.

7.  The 5th charge doesn’t occur until 15 September 2015, again at an office premises in Tsim Sha Tsui.  In that case, the value of the property stolen was around $3,500, and it was taken from a wallet.  The defendant was seen wandering at the entrance to the office, the defendant going into the premises and taking items.

8.  Charge 6 involves a MacBook Air laptop of around $10,000 from an office premises in Quarry Bay on 22 September 2015, the defendant following a person to enter the location in question.

9.  The final charge, Charge 7, was 24 September 2015, the theft of an iPhone.

10.  The defendant was arrested on 24 September 2015.  He was found with the MacBook Air laptop, which was the stolen property in Charge 6, and the iPhone, which was the stolen property from Charge 7.

11.  The defendant made video-recorded interviews, admitted entering location 4 to steal property and taking items from a desk, and location 6, admitting taking the MacBook Air laptop.  The defendant, as I say, has made full admissions and pleaded guilty today.

12.  As far as the defendant’s background is concerned, he is aged 31.  He is the possessor of a Mongolian passport, and was a mobile phone salesman in Mongolia, earning about HK$5,000.  He has a daughter, but is divorced.  He went to university and is of university level education in Mongolia, and his family is in Mongolia.  He has a clear record in Hong Kong.

13.  In respect of the offences to which the defendant has pleaded guilty there is a guideline sentence, and it is common ground that the normal guideline sentence for a person of clear record convicted after trial for a non-domestic premises burglary, the sentence would be one of 30 months’ imprisonment.

14.  The defendant in this case, as he has pleaded guilty, would be entitled to a one-third discount from that figure.

15.  The defence have referred me to the case of HKSAR v Cheung To Ming Cr App 406/2005, and it has been presented to me on the basis that the court can depart from the normal guideline sentence where the defendant is in the position of being what is described in the authority as a “sneak thief” who could walk into premises.

16.  I have considered whether Cheung To Ming is an appropriate guideline for these particular facts, and consider it not to be so.  In the case of Cheung To Ming the facts are very different from this case.  In Cheung To Ming the defendant had entered a non-domestic premises, which was in fact a nature reserve centre in the Mai Po Marshes, in the early hours of the morning.  Those premises apparently had been broken into previously, and the defendant entered them because he was hungry, and he ate two packets of noodles.  And on those facts, the Court of Appeal considered the defendant to be a “sneak thief” who could walk into premises that had been broken into earlier, and because of that was entitled to receive a lesser sentence than would be given for a burglary of a non‑domestic premises.  In that case, a starting point of 18 months’ imprisonment was reduced to 12 months when plea was taken.

17.  The case of Cheung To Ming again on the facts is very different from this case.  The instant case involves burglary of office premises.  Although no force is used to enter, the entry is opportunistic, by waiting till people are either entering or leaving the premises and going in.  But the gravamen of this offence is in the fact the defendant is inside the premises, which are occupied office premises, so the risk of him being detected is high; the risk of him being seen and confronted is high.  I do not think this is an appropriate case to follow the authority of HKSAR v CHeung To Ming.

18.  I see no reason in this case to depart from the normal tariff or guideline sentence for a non‑domestic premises burglary.

19.  I note the defendant’s clear record, that no force is used in entry, no damage appears to occur within the premises, and he commits the offences on his own.  In fact, it is the defendant’s clear desire and intention to be undetected while he does this.

20.  So in respect of each charge the defendant has pleaded guilty to, I shall adopt a starting point of 30 months’ imprisonment.  This will be reduced in respect of each charge by reason of the defendant’s plea of guilty to a figure of 20 months’ imprisonment.

21.  So on each of Charges 1, 3, 4, 5, 6 and 7, the defendant will be sentenced to a sentence of 20 months’ imprisonment.

22.  I must also consider what is the appropriate overall total sentence for these offences, because they can each be served consecutively one to another.  Were the court to do that, that would lead to a sentence which would be inappropriately lengthy for the nature of criminality involved, so I must consider to what extent these sentences should be served consecutively.

23.  The offences are a series of offences over a period of time, a total of six offences detected over a period of some six months, which shows a persistence in committing these offences.  They are serious offences committed over a period of time, and that must be represented in the approach that the court takes to sentencing.

24.  Having considered the question of overall totality, I consider that an overall appropriate starting point for sentence in this offence should be one of 54 months’ imprisonment, which would lead to a final sentence of 36 months’ imprisonment.  I shall achieve that as follows.

25.  I shall order the sentences in Charges 1, 3 and 4 to run concurrently one to each other.  I shall also order that the sentences in 5, 6 and 7 run concurrently to each other, but 16 months of those sentences runs consecutively to Charges 1, 3 and 4.

26.  This gives an overall total sentence for these six offences of 36 months’ imprisonment.