HKSAR v. AMARMUNKH MUNKHTUYA

DCCC 654/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 654 OF 2014

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Reasons for Sentence

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1. The defendant has pleaded guilty today to 13 charges.

2. The first charge is a pickpocketing offence that took place on 30 October 2013 in a supermarket in IFC.  The second pickpocketing offence is Charge 12.  That took place on 18 December 2013, again in IFC, during a live Christmas performance.  On that occasion the defendant had an accomplice that was not arrested.  The third pickpocketing offence is Charge 13.  That took place on 20 April 2014.  This was in Lan Kwai Fong at 1.45 am.  On this occasion, again the defendant had an accomplice that got away.

3. Charges 2 to 11 involve the defendant obtaining or attempting to obtain property by deception.  The credit cards of the first victim of Charge 1 were used by the defendant in various retail outlet shops within hours of her stealing those cards from the first victim.

4. The defendant is not a Hong Kong resident.  She is a Mongolian national, and from Immigration records, between January 2013 and April 2014 she travelled to Hong Kong 16 times, so that is within a period of 15 months, she came 16 times.

5. There are many charges in this case, but actually, the facts are straightforward and simple.  On 30 October 2013, the defendant stole the victim’s purse from her handbag placed in a shopping trolley in City Super IFC at about 6 pm.  This is a particularly busy time for that supermarket.  The victim’s purse was an expensive purse, and in it she lost nine bank cards, her Hong Kong identity card, a Canadian passport, a driving licence, keys and $2,000 cash.

6. When the victim went to pay for her shopping she realised her wallet had been stolen.  Before she left the shop, HSBC Bank called her and asked her if she was making a purchase in Longchamp at 8 Queen’s Road, Central for over $28,000.  Obviously that transaction was not successful, and the victim immediately cancelled all her other credit cards.  However, for some cards it was obviously too late.

7. After the defendant stole the victim’s wallet, this is what she did.  In a shop called Sasa at 6.30 pm she used the victim’s card to buy $1,400-odd worth of goods.  That is Charge 2.  At 6.48 pm she proceeded to Longchamp and tried to buy an item over $28,000.  That is Charge 3.  At 7.01 and 7.07 pm she successfully bought items with the victim’s bank card totalling $3,300-odd; Charges 4 and 5.  At 7.18 and 7.26 pm, the defendant made two purchases at G2000 in D’Aguilar Street for a total of $6,100-odd; Charges 6 and 7.  At 7.43 and 7.46 pm, the defendant made two purchases with the victim’s bank card at a shop called D‑mop on Wellington Street for a total of $15,000-odd; Charges 8 and 9.  Then at 9.03 and 9.04 pm, in Peking Road, Tsim Sha Tsui, the defendant tried to use the victim’s bank card in Sasa to buy items worth $9,600-odd.  An attempt was made twice, but unsuccessfully; Charges 10 and 11.

8. The defendant successfully purchased over $26,000 worth of goods, and unsuccessfully purchased about $47,000 worth of goods.

9. The defendant obviously left Hong Kong after these offences.

10. Then in December, specifically 18 December 2013, the defendant committed Charge 12 at a Christmas concert where a children’s choir was performing and therefore would have attracted many people spectating.  The defendant targeted a victim who was stood with her husband watching their child perform.  The defendant and another woman bumped into the victim and her husband twice.  This caused the victim to be suspicious, and she checked her handbag.  She found her wallet had been stolen from her handbag. Her husband chased the defendant and another woman, but they got away.

11. The husband identified the defendant in a police identification parade some four months later.  He identified her as one of the two women he chased.

12. This victim lost credit cards, her identity card, cash and other personal belongings.  Her wallet alone was worth $2,500.

13. Then, on 20 April, some months later, the defendant committed Charge 13.  Now, as I have said, this took place in Lan Kwai Fong in the early hours of the morning.  The defendant pretended to be drunk and bumped into a victim and her friend, whereupon the defendant put her hand in the victim’s bag and took out her iPhone worth $5,800.  She was caught red-handed, but not before she passed the phone to an Asian male, who fled.

14. Factors I find relevant are that Charges 12 and 13, the defendant worked with an accomplice.  It is also relevant that in 16 months, the defendant came to Hong Kong 16 times. 

15. The defendant has a clear record in Hong Kong, but that is not surprising as the defendant is not a Hong Kong national. Defence counsel has submitted written mitigation for me to consider, including two authorities, the first HKSAR v Ng Van Hui [2005] 1 HKLRD 1.  This authority gives guidelines for pickpocketing cases.  It is often referred to by parties in court.  It is mentioned often.  The other authority that I have been referred to is called R v Chan Siu To [1996] 2 HKCLR 128. Both cases set out relevant factors for sentencing.

16. Defence counsel submits that a 3-year starting point for these credit card offences would be appropriate.  For pickpocketing cases, the often-referred to guideline is a 12 to 15‑month term of imprisonment after trial would be appropriate for a first-time offender.  If there are aggravating factors, that starting point can be increased.

17. I have referred myself to an authority, HKSAR v Sandor Jor Altanqueag and Ulambayar Batqueag CACC 45/2013.  It is a pickpocketing appeal, and the Court of Appeal in that case refers to the guidelines, but says that aggravating factors can increase the guideline significantly, and quotes Patrick Chan J, as he then was, in HKSAR v Ho Ming Kong HCMA 547/1999, where he says:

“We take this opportunity to indicate that in our view, because of their seriousness, organised crimes of this nature, including group pickpocketing, even without international ramifications or international elements, might in future attract a starting point of at least 2½ years.”

18. I have been told of the defendant’s personal background.  She is 30 years old, divorced in 2010, has two daughters now aged 4 and 9.  Her mother looks after them in Mongolia, but her mother is of ill health.  She is assisted by the defendant’s sister.  They all rely on the defendant financially.  The defendant is a merchant.  She buys and sells goods at home. 

19. The defendant’s best mitigation today is her plea of guilty. 

20. Pickpocketing offences cause huge inconvenience to victims.  Aggravating factors that I find relevant here are that the three thefts took place in crowded places full of people.  The second aggravating factor is that she had an accomplice for two of those three thefts.  I am also minded to take into account that she came to Hong Kong to commit offences. Here, on three different visits to Hong Kong, she has committed offences.

21. She has explained that she was visiting a boyfriend here who is himself Mongolian but seeking political asylum.  However, I have no further details on that.  I doubt this is her reason for visiting Hong Kong.

22. If a defendant comes to Hong Kong to commit crimes, they must foresee there is a risk they will get caught.  The fact the defendant has children and a sick mother at home is not a fact I will attach great weight to.  The defendant knew her mother was sick and her children were young when she left them to come to Hong Kong.

23. I have seen a mitigation letter from the defendant.  She says she is remorseful.  I have also taken into account everything said on her behalf by counsel.

24. Defendant, please stand up.  After considering all the facts of the case and all 13 charges, as well as the authorities submitted or cases submitted, the mitigation put forward by defence counsel, as well as the relevant aggravating factors that exist, I find a starting point of 18 months appropriate for Charge 1.  For Charges 2 to 11, I do take a starting point of 3 years’ imprisonment.

25. Because you  have pleaded guilty you are entitled to a discount of one-third.  That would mean for Charge 1 you are to be sentenced to 12 months’ imprisonment.  For Charges 2 through to 11, you are sentenced to 2 years’ imprisonment.  For Charge 12, I take a starting point of 21 months.  This is to reflect that you came back to Hong Kong to commit an offence, you had an accomplice, and chose a busy shopping mall to target the victim.  For Charge 13, I take the same starting point of 21 months, for the same reasons.

26. You are entitled to a discount of one-third for these two offences.  For Charge 12 you are sentenced to 14 months’ imprisonment.  For Charge 13 you are also sentenced to 14 months’ imprisonment.

27. I do take into account the totality principle. Charges 1 through to 11 were committed on the same day.  Charges 2 to 11 were as a result of the theft of Charge 1.

28. I order that Charges 2 to 11 will be served concurrently; at the same time is what that means.  That is a 2‑year term of imprisonment.  I order that the 6 months from Charge 1 be served consecutively to Charge 2.  That means from Charges 1 to 11, you are sentenced to 2 years and 6 months.  I also order that 3 months from Charge 12 be made consecutive to Charge 2.  I also order that 3 months from Charge 13 be served consecutively to Charge 2.

29. That is a total sentence from 1 to 13 of 3 years’ imprisonment.