HKSAR v. Dagvadorj Dorj also known as Daguadorj Dorj

CACC 347/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 347 OF 2015

(ON APPEAL FROM DCCC 629 OF 2015)

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REASONS FOR JUDGMENT

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Introduction

1.The applicant appeared before District Judge G Lam (“the judge”) on 14 September 2015 and pleaded guilty to one charge of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210. On the same day he was sentenced to 20 months’ imprisonment.  He subsequently applied for leave to appeal against this sentence and at the hearing of his application I refused it and said I would give my reasons for doing so at a later date.  This I now do.

The background to the offence

2.The Summary of Facts which the applicant admitted for the purposes of his sentencing hearing revealed that at around 3:18 pm on 9 April 2015 the applicant was noticed to be in the company of 3 other men who were constantly paying attention to the handbags of passersby on 1/F, International Financial Centre Mall, No 1 Harbour View Street, Central, Hong Kong.  The person who observed these men found their behaviour suspicious, and so he put them under surveillance and summoned help. 

3.At around 3:22 pm this same person saw the applicant enter a Calvin Klein underwear shop.  Inside the shop the applicant, who was accompanied by another man, looked around and then decided to purchase four packs of trunks.  At 3:25 pm the applicant took out a dark coloured cardholder and removed a dark red card from it.  He handed the card to the saleslady and then signed on the receipt.  After taking the card back and replacing it in the cardholder the applicant took the receipt and the goods and left the shop together with the other man who had accompanied him.  On their way out of the shop the applicant handed the goods to this man and once out of the shop they walked in separate directions.  All of this was captured by CCTV. 

4.The applicant then entered the “Apple Store”.  Police officers arrived shortly thereafter and the applicant was intercepted.  Upon search of his person the black cardholder was found in the applicant’s left front trouser pocket.  It was found to contain a corporate Mastercard in the name of “Pedro Garcia Gimenez Garsaco Import S.L.” and the receipt for the Calvin Klein underwear that had just been purchased using this card. 

5.The applicant was thereupon arrested.  Subsequent examination of the credit card found it to be genuine. The applicant arrived in Hong Kong on 5 April 2015 and was permitted to remain until 19 April 2015.

Mitigation

6.The applicant is a Mongolian male of 45 years of age.  He is married and lived with his parents and family in Mongolia.  His father is 83 years old and his mother is 77 years old.  His wife is 40 years old and he has three sons aged 15, 7 and 5 years respectively.

7.The applicant is a university graduate and was self-employed in a clothes trading business from 2008 to March 2015 when he stopped the operation of this business.  The applicant is the sole breadwinner of the family which is now in financial difficulty because of his detention in Hong Kong.

8.Through his counsel the applicant expressed true remorse for his offence and said that he had committed the offence out of stupidity and promised not to commit further offences.  He had been co-operative with the police and had admitted the offence from the beginning.  The credit card that was used fraudulently was a genuine card and the value of the goods involved was only HK$1,140.50. 

9.In explanation of the offence the applicant’s solicitor informed the court that the applicant had come to Hong Konglooking for business opportunities after closing down his business in Mongolia.  He said he was outside the Hong Kong Airport Express Station and another Mongolian male approached him and asked him to assist him in doing some shopping in Hong Kong.  This other Mongolian male had noticed that the applicant was able to speak some English and told the applicant that he would be able to assist him in translation.  The applicant had already consumed some alcohol and under the influence of that alcohol he had agreed to the suggestion of his fellow countryman.  He said he was passed the credit card by his countryman. 

10.His solicitor also informed the court that he had no similar record and had never been in prison before.  Furthermore, he had received a letter from his family informing him that his parents were ill.  His solicitor handed to the court a letter written by the applicant in Mongolian which effectively repeated the mitigation that the solicitor had advanced before the court. 

The Judge’s Reasons for Sentence

11.After setting out the facts of the case and the mitigation the judge said that he did not find the applicant’s story credible.  He noted that elements of it were contrary to the Summary of Facts in which the applicant admitted that the card had all along been in his possession.  He said that if the applicant was in fact assisting his friend to shop, he could simply have let that friend pay. Furthermore, he should have returned the card to his friend after using it.  The judge said in respect of the applicant’s explanation:

“His story defies common sense and is full of inherent flaws.”

12.Furthermore, the judge noted that the applicant was not acting alone and that there was every reason to believe that there were other culprits involved in relation to the supply of credit cards and the manipulation of others to use those credit cards for them.

13.The judge then went on to note that credit card offences are serious and must be deterred.  He referred to Court of Appeal authority which endorsed the need for deterrent sentences and for offenders to be punished by the imposition of substantial sentences of imprisonment.  One such authority endorsed a starting point of 3 years’ imprisonment for the unauthorized use of one credit card.  The judge said that he noted the applicant had used the card to obtain consumer goods with a total value of only slightly over $1,000 and that no one had suffered any financial loss.  He then said he considered the appropriate starting point to be 2.5 years’ imprisonment.  He allowed the applicant a one-third discount for his guilty plea and this reduced his starting point to 20 months.  He said there were no other mitigating factors which warranted any further reduction and so imposed upon the applicant a sentence of 20 months’ imprisonment.

The grounds of appeal

14.The applicant is not legally represented and has not filed any grounds of appeal.  However, in a letter attached his Form XI he said that he understands what he has done and is very remorseful for it.  He refers to the age and illness of his parents and that he has a wife and three children, two of whom are still quite young.  He says that he is the provider of his family and is extremely worried about them, especially his frail and elderly parents. 

15.The applicant also wrote a letter to the court dated 20 December 2015.  In that letter he repeated much what he had said in his letter that is attached to his Form XI, namely that he was remorseful and that his elderly father was ill and could die at any time.  He said that since he was the only son there was no one else to take care of his father.  He pleaded for a lenient sentence.  In support of his claim that his father was ill he attached a letter from a doctor in Mongolia which contains a diagnosis of the father, asserting that he is suffering from chronic cerebral circulation insufficiency, the effects of an ischemic stroke and dyscirculatory encephalopathy atherosclerosis of the brain. Similarly, he attached a medical certificate in respect of his mother which revealed that she was suffering from acute rheumatic fever and senility and had last her ability to walk. Also attached is a confirmation letter from the Governor’s Office of 7^th Khoroo confirming that the applicant resides in a house consisting of 7 persons who are his father, mother, wife and three sons. 

16.At the hearing of the application the applicant again expressed remorse and promised not to re-offered.  He also repeated his concern for his parents and his family and said that he worried about them and wished to re-unite with them as soon as possible so that he could look after them.  He asked the court to consider his family’s situation.

Discussion

17.I have carefully considered the Reasons for Sentence of the judge and can detect no error in them.  He was perfectly entitled to disbelieve the applicant’s account of his involvement in his offence and to conclude the applicant was part of a larger syndicate.  The starting point for sentence was arrived at after considering all the circumstances of the offence and applying the correct legal principles to it. The starting point is perfectly proper for an offence of this level of seriousness. 

18.The complaint of the applicant is essentially one of a plea for mercy, given the health situation of his parents and that he, the applicant, is the financial provider for the family.  However, this court has said on many occasions that pleas of mercy of this nature will not usually be entertained for offences of this level of seriousness.  The applicant should have thought of the potential consequences to his family before participating in criminal conduct.

Conclusion

19.For these reasons I dismissed the application for leave to appeal against sentence. I informed the applicant of the Court of Appeal’s power under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.

Ms Audrey Parwani PP, of the Department of Justice, for the respondent

The applicant appeared in person