HKSAR v. ALTANTUYA CHINGUNJAV AND OTHERS

DCCC 476/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 476 OF 2016

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REASONS FOR SENTENCE

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1.  This is a case of attempted pickpocketing involving three Mongolian defendants who are all in their 20s. The three defendants in the case pleaded guilty before me to one joint charge of attempted theft (Charge 1). As a result of the finding of two mobile phones on the 3^rd defendant at the time of his arrest, he was charged with two additional counts of handling stolen goods to which he also pleaded guilty.

2.  At about 7:40 pm on 11 March 2016, the three defendants were picked up by police officers who were on a stakeout operation in Tsim Sha Tsui area.  The officers noticed the trio walking together along Granville Road towards the direction of Chatham Road South, paying particular attention to the personal belongings of passers-by.

3.  There came a stage when the 3^rd defendant signaled with his hand to the 1^st and 2^nd defendants to target a lady who was carrying a handbag.  The 3^rd defendant then jumped into a taxi and waited, and at the same time the other two defendants walked up to the lady.  The 1^st defendant put his hand into the lady’s handbag and the 2^nd defendant covered him by distracting her attention and acting as a lookout at the same time.  Alerted by the touching, the lady immediately turned to look at her handbag and checked if anything missing.  Fleeing empty-handed, the 1^st and 2^nd defendants jumped back into the waiting taxi intending to leave the scene together with the 3^rd defendant, but they were all stopped by the police.

4.  Upon search, the police found two mobile phones on the person of the 3^rd defendant.  The police were able to locate the owners of these mobile phones.  Both happen to be female and have the same surname, ‘Cheung’.  One Madam Cheung told the police that she last used her phone earlier on at around 1853 hours when she was walking along Haiphong Road, Tsim Sha Tsui, and then put it in the outer pocket of her jacket.  When she reached Silvercord Centre at Canton Road a few minutes later, she discovered that her mobile phone had gone missing.  Her phone is worth $5,000.  The other Madam Cheung told the police that she last used her phone near the Star Ferry Pier, Tsim Sha Tsui, at around 1900 hours the same day.  Some 15 minutes later when she arrived at the I-Square at Nathan Road, she found her phone missing, which is worth $6,500.

5.  The 1^st defendant entered Hong Kong on 10 March 2016 with permission to stay until 24 March 2016.  The 2^nd defendant is a torture claimant in Hong Kong.  He came to Hong Kong in November 2015.  The 3^rd defendant entered Hong Kong on 30 January 2016 and was permitted to stay for two weeks until the 13 February 2016.  When he was arrested, the 3^rd defendant was an overstayer.  Except the 2^nd defendant who has one previous conviction of theft- shoplifting; the other two defendants are persons of clear record.  Because of his present offence, the 2^nd defendant is in breach of a suspended sentence imposed upon him by another court on 1 February 2016 for the offence of shoplifting.  He was sentenced to 14 days’ imprisonment suspended for 12 months.

6.  The court was told that the 1^st defendant is a married man with a one-year-old son.  He learnt from his wife, counsel said, that their baby boy was admitted to hospital for treatment, and that is the only information he has and nothing further.  He is a construction worker back in Mongolia and the sole breadwinner of the family.  It was submitted that the 1^st defendant came to Hong Kong for sightseeing, but unfortunately he found himself running out of money.  The 1^st defendant then decided to make money by stealing to pay for the return journey to Mongolia.

7.  The 2^nd defendant is also a married man with a 3-year-old son.  He came in November 2015 to seek asylum and now is a torture claimant.  The court was told that because of his status, he is not allowed to work in Hong Kong.  Prior to his arrest, he had been living with his fellow countrymen who provided board and lodgings for him.  The 2^nd defendant admitted that he stole out of greed.

8.  The 3^rd defendant is single, he has the highest educational qualification among the three.  He is a final year university student, studying communication engineering in Mongolia.  He came to Hong Kong in January 2016 wanting to attend the Madonna concert in Macau.  Counsel said that he found himself running out of money, like the 1^st defendant, because of the high living expenses here and that had driven him to steal.

9.  Both the 1^st and 3^rd defendants had written to the court.  They expressed the same theme in their letters that they were remorseful for what they did and promised not to do it again.

10.  Defence counsel submitted two authorities for the court’s consideration.  The first case is Sandagdorj Altankhuyag & Anor CACC 45/2013; the other Ganbold Munch Erdene & Anor CACC 315/2014.  Counsel submitted that from his legal research, he is of the opinion that the facts of the present case justified the court taking a starting point of 30 months.

11.  Insofar as the handling charges are concerned, he is also of the view that the phones were stolen in circumstances of pickpocketing.

12.  Notwithstanding defence counsel’s concession, on the evidence before the court, I would have come to the same conclusion that this is a case of pickpocketing which warrants a higher starting point, for example, 30 months’ imprisonment, and that the two mobile phones found on the 3^rd defendant were the results of pickpocketing.  There are sentencing guidelines for this type of offence. 

13.  In Ngo Van Huy CACC 107/2004, the Appellate Court said in paragraph 9 of the judgment that:-

“(1) Theft by pickpocketing can be regarded as the type of offence that society severely and rightly condemns. Although in many cases, the value of the items stolen may not amount to much, the significant degree of inconvenience, the relative ease with which it can be effected by a direct invasion of or about the person and privacy of those minding their business in public places, and the adverse reputation that this type of crime collectively brings upon a city makes this offence a particularly serious one. It is one which attracts, justifiably in our view, a heavy penalty.

(2) The guideline sentence of 12 to 15 months after trial is therefore appropriate for a first time offender. This is an immediate custodial sentence, not a suspended one.

(3) Of course, account must be taken of the existence of any aggravating or particular mitigating features before the court.

(4) Aggravating features include:-

(a) The presence or use of a weapon.

(b) Where the offence is committed in a place in which the public is at particular risk, such as crowded places like the MTR or the racecourse, crowded shopping areas where the pedestrian traffic is heavy.

(c) If the accused commits the offence in conjunction with another, the sentence should be higher.

(d) Where the accused is a repeat offender or, worse still, a persistent one.”

And the Higher Court said this list is not meant to be exhaustive.

14.  To determine where the starting point will lie within the first range of 12 to 15 months’ imprisonment, much depends on the following matters:-

(a) The value of the property stolen;

(b) The age or the vulnerability of victim;

(c) The expertise used in the theft. (See Chiu Suet Yee Angel, CACC 105/2010)

15.  It is worth noting that the appellate court has talked about organized pickpocketing in the case of Ngo Van Huy.  In paragraph 9(4)(c), the higher court said:-

“Where he is part of an organized and professional ring of thieves, a substantial increase in sentence may be called for. For example, where professional pickpockets from overseas (whether individually or in a group) come to Hong Kong to carry out this type of activity (no doubt tempting owing to the number of crowded places here), an increased sentence can be imposed...” - see R v Saldana Alca Jose & Anor CACC 655/1996 (unreported).”

16.  The higher court went on to say that, in giving the judgment of the Court of Appeal, Patrick Chan J made the following remark about organized pickpocketing.

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

17.  The 1^st defendant said he came to Hong Kong for sightseeing, but I doubt it very much.  He came on 10 March and in the following day, he was found committing a serious crime in Tsim Sha Tsui.  There did not seem to be much sightseeing he had done before deciding to do the crime. 

18.  His reason put forward for the commission of the offence was that he ran out of money, so he needed money to go home.  But it is hard to imagine he could have spent almost all his money within a day of his arrival and I have no doubt in mind that he came here with the sole purpose of committing crimes here.

19.  Defence counsel said the three defendants initially were not acquainted, it was when they were here and by the introduction of a common friend, they came to know each other.  Although, the 2^nd and 3^rd defendants had been here for quite some time before acquainting with the 1^st defendant, it is obvious from the fact that scarcely had they acquainted with each other when they started to conjure up plans for stealing.

20.  The way they executed their plan was done with sheer professionalism.  Once they found their target, one of them jumps into a taxi waiting - obviously for the purpose of fleeing from the scene after the event.  The other two go and execute it: one covers the other, while the other is doing the dirty job.

21.  As can be seen from the present case, within seconds, the 1^st defendant was able to put his hand into the handbag of the victim.  The victim was lucky because the thief did not get anything this time.  Success or not, the thieves quickly jumped back into the waiting taxi to flee.  Had it not been for police vigilance, the defendants would have made good their escape and would be let loose to find other victims.  Given the facts of the case, I am of the view that this is an organized pickpocketing which warrants a higher sentence, ie, 2½ years.

22.  Now, turning to the two mobile phones found on the 3^rd defendant.  The three defendants, undoubtedly, are pickpockets. The phones were lost not long before they were arrested by police for stealing.  Given the circumstances of their loss as described by the owners, I am satisfied that they were lost in circumstances akin to pickpocketing.  The 3^rd defendant received the phones from the thief who just picked somebody’s pocket, as it were.  It is not clear how many are involved in the stealing.  But one certainty was that they were stolen from crowded places and the stolen property are valuable items- they are mobile phones.

23.  If the 3^rd defendant were the thief, I would adopt 18 months as a starting point (15 months because it involved mobile phone and the additional 3 months for the crime being committed in a crowded place).

24.  In terms of criminality, I do not think there is much difference between a handler and a thief.  As is often said, the existence of handlers encourages thieves to steal because now the thief would know that there is someone who would help them get rid of the stolen items.  Thus, for the handling charges, I would also take a starting point of 18 months.

25.  As far as mitigation is concerned, apart from their guilty pleas, there isn’t anything of substance.  Giving a one-third discount for their plea in respect of Charge 1, all three defendants are sentenced to 20 months’ imprisonment each. 

26.  In respect of Charges 2 and 3, the handling, the 3^rd defendant is sentenced to 12 months each.  Taking into account the totality principle, I order that the term of Charge 1 be run consecutively to 3 months of each subsequent charge, the total term is one of 26 months.

27.  As for the breach of suspended sentence, the 2^nd defendant committed a much more serious offence of the same kind within six weeks after the suspended sentence was handed down, and I see no reason not to activate it.

28.  I order that the term of Charge 1 be run wholly consecutively to the sentence of 2 weeks’ imprisonment.  So for the 2^nd defendant, the total term is one of 20 months and 2 weeks’ imprisonment.