HKSAR v. NYAMDOO ZOLJARGAL

DCCC 829/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 829 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two offences of theft and one of attempting to obtain property by deception. The defendant has admitted the facts. These facts show on 7 July 2015, the victim, PW1, travelled by MTR to Tsim Sha Tsui in the afternoon. She had a coin bag that amongst other things contained seven bankcards, two Octopus cards and some membership cards. The coin bag went missing after she left Tsim Sha Tsui MTR station.

2.  Later that evening around 6 o’clock, the defendant attempted to use an American Express card that had been inside the coin bag.  He unsuccessfully tried to use the American Express card at a shop in Tsim Sha Tsui to buy ladies Longines watch which is valued at $13,100.  The transaction was not approved by the card centre so it did not go through.  Subsequently, the defendant went to a 7-Eleven shop and used a Senior Citizen’s Octopus card that had also been in the coin bag to purchase some food items valued at about $32.  The defendant was observed doing these things by police officers.  He was arrested shortly afterwards.

3.  He was searched, and the seven bankcards, including Amex card used to try to purchase the watch were recovered from him together with the two Octopus cards, including the Senior Octopus card that had been used earlier at 7-Eleven. 

4.  The charges relate to the 1st charge is the theft of the bankcards, the Octopus card and membership cards which had been in the coin bag.  The second charge is the attempt to obtain property by deception by using the Amex card, and the third charges relates to use of the Octopus card to buy the food items in 7-Eleven.

5.  As far as defendant’s antecedents is concerned, he is aged 30.  He is a Mongolian national.  In Hong Kong he is what is described as a Form 8 holder.  Because of that he must necessarily be unemployed.  He has, in total, six previous recorded convictions, four of those being for theft, three of those are described as being pickpocketing offences and he has received sentences of up to 15 months’ imprisonment for those offences.  He also has a conviction for criminal damage and procuring another person for unlawful sexual intercourse.  At the present moment there is an outstanding criminal damage case against him.

6.  In mitigation, he said he is a street sleeper.  He is unemployed and has no means of support.  He says in mitigation that he found the coin bag rather than took it by way of pickpocketing and that he then tried to use the cards.

7.  As far as the sentence on the offences is concerned.  The defendant does have previous convictions for theft and that would aggravate his commission of those offences on 7 July. However, so far he has not committed any offences relating to the use of credit cards.  And as far as the thefts are concerned, they are thefts by way of a finding of the coin bag.  The evidence does not necessarily support the only inference as being the defendant pickpocketed the item, and the other theft is use of octopus card to buy some low-value items in the shop.

8.  Nevertheless, these are not the first offences of theft the defendant has committed and his failure and his continuation of committing offences such as that is an aggravating factor of those.

9.  The second offence, being the attempted use of the credit card is the most serious offence the defendant faces.  He tried to use in that case a stolen credit card, an American Express card.  It has been said in the case of HKSAR v Lam See Chung Steven [2013] 5 HKLRD 242, that the approach to sentencing for credit card fraud, that is the use of the credit card involving counterfeit cards and stolen genuine credit cards is basically the same, with a starting point for sentence of 3 years’ imprisonment, being appropriate for a simple case in both situations.

10.  This case involves a single attempted use of a stolen credit card to get an item valued at about $13,000.  I do not think it can be described as a high-value item.  It clearly is a simple case within the definition of the case I previously cited, so a starting point on that charge of 3 years’ imprisonment would be appropriate.

11.  So I will adopt the following starting points for the three offences.  The first charge of theft, this is aggravated and will be an additional element having regard the defendant’s previous convictions of theft, I will take a starting point of 6 months’ imprisonment; on the 2nd charge, a starting point of 3 years’ imprisonment; and on the 3rd charge, a starting point of 6 months’ imprisonment.

12.  The defendant is entitled to a one-third deduction from each of those starting points for his plea of guilty.  This leads sentences on the three charges as follows.

13.  The 1st charge, 4 months’ imprisonment; 2nd charge, 2 years’ imprisonment; and the 3rd charge, 4 months’ imprisonment.

14.  The offences themselves arise basically out of the same incident and are committed on the same date. Having regard to that factor and also the question of overall totality, I will order that all sentences will be served concurrently to a total of 2 years’ imprisonment.  So the sentence of court will be one of 2 years’ imprisonment.