HKSAR v. BATJARGAL ENKHTUVSHIN

DCCC 418/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 418 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two counts of burglary. The particulars of both offences relate to two separate office premises. The defendant burgled both these office premises on 24 December 2015. Both were in the Causeway Bay area.

2.  The facts are as follows.  The first burglary, Charge 1, relates to a financial company on the 21st Floor of Leighton Centre, Leighton Road, Causeway Bay.

3.  On 24 December, at about 12.30 pm, the first victim working in this finance company left her mobile phone, worth about $3,000, on her desk in the office.  She, for whatever reason, left the office through the main door.  But as the door was about to close behind her, the defendant caught the door and entered the office.  He then looked around this office and walked towards her desk and cubicle area.  The defendant took her mobile phone from her desk and left the premises.  He was inside less than a minute. 

4.  His actions and his presence were all caught on CCTV camera. 

5.  The first victim returned within 10 minutes of leaving her office, found her phone missing and reported the matter to the police.

6.  The second burglary relates to Charge 2.  The premise was an office of a telecommunications company on the 37th Floor of Lee Gardens One, Hysan Avenue, Causeway Bay.  Basically, the defendant’s modus operandi was the same as that of the first burglary. 

7.  As the second victim, a member of staff, left the front door of those offices and just before the door closed behind her, the defendant appeared, pushed the door open and entered the offices. 

8.  He is also captured on CCTV camera.  He looks around the reception area, enters the offices themselves and comes back to the reception area within one to two minutes.  As he leaves the offices, he bumps into the second victim.  They even have a conversation. 

9.  CCTV footage of that office captured the defendant’s features.  Moreover, the second victim was able to identify the defendant several hours later.

10.  The second victim returned to her office and noticed that there was a pen on her desk which was not there originally.  This made her suspicious so she checked her wallet and found several hundred dollars cash missing.  She reported the matter to the police.

11.  Some hours after that second burglary, police officers were on patrol in Causeway Bay and a particularly vigilant officer, PC 10860, saw the defendant and thought he resembled the wanted person from CCTV footage from the burgled premises.  He intercepted that defendant. 

12.  On the defendant, the officer found the first victim’s mobile phone, cash of $4,688.50 as well as some tools in his bag. Those tools included a knife, a pair of pliers, a torch, a screwdriver and a doorstop.  As I have said, he was then identified by the second victim and arrested.

13.  The defendant is a Mongolian national.  He arrived in Hong Kong on 18 December 2015, a few days before these offences.  He has a clear record in Hong Kong.  However, I do not place great weight on that fact as he is not a Hong Kong resident.

14.  I have heard mitigation on the defendant’s behalf.  Miss Lam has said all she can.  He is 31 years old, single and lives alone in Mongolia.  He was gainfully employed for many years until 2013.  Since then he has been living on his savings.  He came to Hong Kong on a tourist visa to sightsee. 

15.  It has been submitted on his behalf that his offences were opportunistic offences.  But, with respect, I find that the defendant targeted offices and lay in wait for staff to use the main door to gain access.  He would look around very quickly for items of value and leave. He had to travel to very high floors in both buildings.  Moreover, he had tools in his bag that were not tools of a trade.  They were all items capable of assisting him in committing offences of this nature.  I would say he was prepared rather than an opportunist. 

16.  Usually there is a tariff of 2 years and 6 months starting point for burglaries of non-domestic premises such as offices. This is in the absence of any mitigating or aggravating factors. 

17.  Having considered the facts and the mitigation put forward, I do not find that any aggravating factors exist, nor do I find any particular mitigating factors exist.  Under those circumstances, I will not depart from the normal tariff.  I will use a starting point of 2 years and 6 months for each offence.  The defendant has pleaded guilty and is entitled to a discount of one-third for those pleas. 

18.  Defendant, please stand up.

19.  After that discount is applied, for Charges 1 and 2, the defendant is sentenced to 1 year and 8 months’ imprisonment.

20.  I have taken into account the totality principle.  I have taken into account that both offences were committed on the same day.  But my sentence must reflect that there was more than one burglary. Therefore, I order 4 months of Charge 2 to be served consecutively to Charge 1 and the balance concurrently.  Therefore, there is a total sentence of 2 years’ imprisonment.  Do you understand that sentence?