HKSAR v. Dorjnamjim Tumurbaatar and Others

DCCC 160/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 160 OF 2016

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REASONS FOR SENTENCE

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1.At the outset, the Defendants were jointly charged with the first two counts of theft, contrary to Section 9 of the Theft Ordinance, Cap. 210, D1 and D4 were jointly charged with Count 3 of theft, contrary to Section 9 of the Theft Ordinance, Cap. 210. The Prosecution sought leave to withdraw Count 2 against D3, to withdraw the original Count 3 against D4 and lay an amended Count 3 against D1 of handling stolen goods, contrary to Section 24 of the Theft Ordinance, Cap. 210 and to lay an additional Count 4 against D3 of handling stolen goods, contrary to Section 24 of the Theft Ordinance, Cap. 210. All Defendants had no objection to this application by the Prosecution and I granted the Prosecution’s application. The Re-Amended Charge Sheet dated 12^th July, 2016 was formally filed by the Prosecution.

2.D1, D2 and D3 entered pleas of guilty to Count 1 of theft,  D1 and D2 entered pleas of guilty to Count 2 of theft,  D1 entered a plea of guilty to Count 3 of handling stolen goods, and D3 entered a plea of guilty to Count 4 of handling stolen goods on the Re-Amended Charge Sheet. Each of them also admitted the Re-Amended Summary of Facts dated 13^th July, 2016 read into the record by the Prosecution. Counsel on behalf of each Defendant also confirmed that they each admitted the Facts.  I was satisfied beyond all reasonable doubt that the facts supported the charges that each of the Defendants, D1 to D3, had admitted and accordingly I convicted each of them on the charges that each had admitted. D4 entered pleas of not guilty to the charges that she faced.

3.The Prosecution applied for Counts 1 and 2 against D4 to be left on file, not to be proceeded with without leave of the Court. There was no objection to this application and I granted it and formally discharged D4.

Facts

4.The Hong Kong International Jewelry Show (“the Exhibition”) was held at the Hong Kong Convention & Exhibition Centre (HKCEC) between 26 and 29 November, 2015. Every person entering the Exhibition must provide their personal particulars and produce identity documents bearing their photos for registration purposes.  Upon successful registration, they will be issued with a permit for entry into the Exhibition.  Before each visitor to the Exhibition could enter the exhibition hall, they had to pass through one of three security checkpoints (1A, 1B and 1C). An identity verification system was in place at each security checkpoint which required all visitors to produce their entry permits and identification documents to the security guards before they could enter the exhibition halls. The entry and exit of each visitor to the Exhibition would be recorded by the organizer of the Exhibition.

Charge 1

5.Mr. Wong and Mr. Shimizu were the salesperson and manager respectively of Aidect, an exhibitor at the Exhibition at Booth No. C5-7, Hall 1A, HKCEC selling fine jewelry products. At around 15.14 hours on 26^th November, 2015, D1, D2 and D3 entered their booth and went to see some jewelry items.  Mr. Wong took out 16 pairs of earrings, valued at around HK$47,000, which were contained in a display tray. At around 15.16 hours, while Mr. Wong was distracted by D3 and another customer, D2 took away the display tray containing the earrings and passed them to D1 who put the stolen property into his bag.  D3 stood in a position that prevented others in the booth from seeing what D1 and D2 were doing. D1, D2 and D3 then left the shop together.  The CCTV at the booth captured the entire incident. Mr. Wong discovered that the stolen property was missing during a stock check at 18.30 hours later that day, and a report was made to the police.

Charges 2 & 4

6.Ms. Wong was the manager of  Jewelpark (H.K.) Company Ltd., an exhibitor at the Exhibition at Booth No. AF30, HKCEC selling fine jewelry products.  No CCTV system was installed in this booth.  At about midday on 27^th November, 2015, Ms. Wong conducted a stock check and discovered that 86 pieces of wrist chains valued at around HK$143,000, all contained in one display tray, were missing. No staff in the booth had witnessed how and when these were stolen.

Arrest of D1, D2 & D3

7.After the offence in charge 1 was reported, police officers reviewed the footages captured by the CCTV system in the booth  of Aidect and compared the images of D1, D2 and D3 with the CCTV footages from the registration counter,  exhibition hall entrances and exits. With the personal particulars and information provided for the registration to obtain entry permits to the Exhibition, the identities of D1, D2 and D3 were disclosed.  It was discovered that D3 had used the entry permit in the name of LKHAGVAJAV Munkhzul (D4 in these proceedings and the wife of D1) to pass through security checkpoint 1C at about 13.55 hours on 26 November, 2015.

8.Investigation revealed that D1 had applied for an entry permit at registration counter No. 10 at 11.39 hours on 26^th November, 2015 and D2 had applied at registration counter No. 12 at 11.31 hours. D3 had tried to apply for an entry permit on the pre-registration day on 25^th November, 2015 but was rejected, so she did not have an entry permit in her own name.

9.On 26^th November, 2015,  at around 11.57 hours, D1 and D2 entered Exhibition Hall 1C together with their own entry permits. D3 entered Exhibition Hall 1C on 26^th November, 2015 at 12.19 hours using the entry permit issued to another Mongolian female – LAJMAA Baljinnyam. D1, D2 and D3 left the hall together at 13.31 hours on 26^th November, 2015.  Later the same day, D1, D2 and D3 at 13.55 hours, entered Hall 1C together. D1 and D2 used their own entry permits while D3 used the entry permit in the name of LKHAGVAJAV Munkhzul, D4 herein and the wife of D1. They left Hall 1C together at around 15.19 hours the same day.

10.On 27^th November, 2015, D1 and D2 entered Exhibition Hall 1C together at 12.36 hours using their own entry permits. They left together at around 14.31 hours.

11.D1, D2 and D3 were put on the Wanted and Watch Lists by the police. They were arrested at noon on 29^th November, 2015 at the Hong Kong International Airport when they were trying to leave Hong Kong.   D1 together with his wife, D4 herein, and D3 were to leave on a flight for Mongolia while D2 was to leave on a flight to Bangkok.  The luggage of D1 to D4 was retrieved from their respective flights.

12.25 pieces of wrist chains stolen from Jewelpark (H.K.) Co. Ltd. was recovered from the luggage of D1; 1 pair of earrings and the display tray used to contain the 16 pairs of earrings stolen from Aidect and 34 pieces of wrist chains stolen from Jewelpark (H.K.) Co. Ltd. was recovered from the luggage of D3, and 9 pairs of earrings stolen from Aidect and 27 pieces of wrist chains stolen from Jewelpark (H.K.) Co. Ltd. were recovered from D4’s luggage.  D1 admitted in a video record of interview under caution that he had registered his luggage i.e. the luggage from which 9 pairs of earrings and 27 pieces wrist chains were recovered,   in D4’s name.

13.The price tags were still on the 86 pieces of wrist chains that were recovered from the luggage of D1, D3 and D4.

Charge 3

14.Mrs. Ho received an iPhone 6s valued at about HK$6,000 as a gift from her son in May, 2015. She had put a SIM card into the mobile phone and registered as a monthly plan user with China Mobile HK.  At around 17.00 hours on 28^th November, 2015, she visited her daughter-in-law’s grocery shop , and put the mobile phone on a shelf while she chatted with some customers. When she went to the shelf 2 minutes later, she found the mobile phone was missing.  She could not find it anywhere inside the shop.  The mobile phone was recovered from D4’s luggage when she was about to leave Hong Kong on 29^th November, 2015.

Statements under Caution of D1, D2 & D3

D1

14. In a video-recorded interview under caution between 15.35 and 17.31 hours and between 17.57 and 18.47 hours on 30^th November, 2015, in the presence of an interpreter, D1 said, inter alia, that he had come to Hong Kong as a tourist on 26 November, 2015, that he had gone to the Exhibition on 26^th and 27^th November, 2015. On 26^th November, 2015, he had gone to the Exhibition with D3 but D3 was refused entry.

15.In another video-recorded interview under caution, in the presence of an interpreter, on 12^th February, 2016, D1 stated that the stolen mobile phone was given to him at the airport by an unknown Mongolian male aged 25-26 years who asked him to convey it to Mongolia for reward. Someone would collect the mobile when he arrived in Mongolia.

D2

16.In a video-recorded interview under caution between 22.51 hours on 30^th November, 2015 and 00.11 hours on 1^st December, 2015, in the presence of an interpreter, D2 stated, inter alia, that he came to Hong Kong as a tourist on 23 November, 2015, and he did not make any purchases.  He admitted stealing the 16 pairs of earrings and 86 pieces of wrist chains at the Exhibition, but could not remember from which particular exhibitor.

D3

17.In a video-recorded interview between 19.16 hours and 20.33 hours on 30^th November, 2015 in the presence of an interpreter, D3 stated, inter alia, that she came to Hong Kong for business on 25^th November, 2015. She had seen D1, D2 and D4 before, but did not know them.  She was in the vicinity of the Exhibition on 26^th November, 2015.  D2 had sold them the 16 pairs of earrings and 86 pieces of wrist chains for US$5,000.  At the material time, she knew the 86 pieces of wrist chains were stolen goods and she had handled them.

18.TIC Records of D1, D2 and D3 showed that they were all in Hong Kong at the time of the offences.

19.The stolen properties in Charges 1 and 2 have all been recovered save for 6 pairs of earrings in Charge 1.

20.The police are to be commended for their investigation that has led to the Defendants’ arrest.

Previous Convictions

21.D1 and D2 both have clear records.

22.D3 has 5 previous convictions in one court appearance in 2004.  None are similar to the present offences. For the purpose of sentencing, I shall disregard her previous convictions.

Mitigation

23.The antecedent statements of D1, D2 and D3 were read into the record.  No issue was taken in respect of the contents by any of the Defendants. The Background Reports in respect of each Defendant and the medical report of D3 are all before me. No issue has been taken on the contents save in respect of paragraph 3 of the Background Report of D2 where it is recorded that it was D1 who proposed the stealing plan. He no longer relies on this.  But as Mr. Mitchell rightly said, Charge 1 against all the Defendants and Charge 2 against D1 and D2 are brought on the basis of joint enterprise.

D1 & D2

24.D1 is now aged 36 years.  He is a native of Mongolia, holding a Mongolian passport.  He is educated to secondary level. In Mongolia he is a retailer of sports shoes. He is married and lives in Mongolia with his wife and 2 sons. D4 in these proceedings is his wife.

25.D2 is now aged 30 years. He is a native of Mongolia and holds a Mongolian passport. He is educated to secondary level.  He worked as a mining worker between 2010 and 2015. He is married and lives in Mongolia with his wife and 2 sons.

26.Mr. Mitchell, on behalf of D1 and D2, submitted that the theft the subject matter of Charge 2 in fact took place on 26^th November, 2015.  It was only discovered at about midday on 27^th November, 2015 when the stock check was conducted.  The particulars of Charge 2 put the theft to be on or about 27^th November, 2015.  Also, D2 in his video interview under caution, referred to in paragraph 14 of the facts, admitted stealing 16 pairs of earrings and 86 pieces of wrist chains on 26^th November, 2015.  Both D1 and D2 have admitted charge 2 on the charge sheet, so in my view it makes little difference.

27.It was also submitted on behalf of D1 and D2  that they had not arrived in Hong Kong at the same time – D2 arrived on 24^th November, 2015 at 13.25 hours while D1 arrived on 25^th November, 2015 at 13.15 hours (different from what each said in their video record of interviews under caution).  Although both were Mongolians, they had only met each other in Tsim Sha Tsui in Hong Kong.  D1 and his wife stayed with a friend in Kam Tin while D2 stayed in Tsim Sha Tsui.  They met up again at the HKCEC on 26^th November, 2015. Mr. Mitchell also submitted that some of the factors pointed to a lack of professionalism in these thefts.  Firstly, professionals would have been aware of CCTV systems being in use at such events especially as high value goods were involved.  The defendants did not leave immediately after the offences were committed. By having stayed several days more, the police had had time to investigate and learn their identities.   D1 and D2 had registered in their own names, which facilitated the police in identifying them.  Also, the labels were still attached to the wrist chains. All these pointed to it being an opportunistic theft rather than organized theft.

28.Mr. Mitchell also submitted that D1 and D2 had returned to the Exhibition on 27^th November, 2015, and D1 had made legitimate purchases, as reflected in the Prosecution application for disposal of exhibits where the Prosecution asked for Item 13, 4 stones, to be returned to D1.  That the Prosecution asked for the stones to be returned to D1 in my view does not mean that D1 purchased these at the Exhibition on 27^th November, 2015.

29.Mr. Mitchell also submitted that apart from the stolen iphone, 4 other mobiles still in their boxes were in the luggage. The police had been able to locate the owner and in the application for disposal of exhibits, the prosecution had sought their return to the owner.

30.It was submitted that D1 and his wife had come to Hong Kong separately – the purpose of their trip was to buy stock for the shop that they operated in Mongolia selling sports shoes, which they sourced from Hong Kong and China, and earned HK$5,000 to HK$6,000 a month. D1 and D4 have 2 sons, aged 12 years and 6 years, who are currently looked after by D1’s younger brother.

31.D2 had been working in a mine in Mongolia. Because of the closure of the mines because of the cold winter months, D2 came to Hong Kong on vacation. He earned HK$4,000 a month, and was married with 2 sons aged 13 years and 4 years. As his wife did not work, he was the sole breadwinner.

32.Mr. Mitchell also submitted that both D1 and D2 were remorseful and had indicated their intention to enter pleas of guilty at an early stage by the letters they had written to the Court.

33.Mr. Mitchell referred to HKSAR v. Tsogbadrakh Otgon, CACC 393/2013.  He submitted that the present case could be distinguished as there, the defendant was convicted after trial. The only international element here was that the Defendants were from Mongolia, and the stolen property was to be taken out of Hong Kong. D1 and D2 had clear records and had entered pleas of guilty, reflecting remorse. There was a lack of planning and they had not come to Hong Kong to commit the thefts. Much of the stolen property had also been recovered.  He urged the court to make the sentences at least partially concurrent and to bear the totality principle in mind.

D3

34.Ms. Liang for D3 sought concurrent sentences for her in respect of charges 1 and 4.  She referred to the case of HKSAR v. Tsogbadrakh Otgon, supra, for the starting points for charges 1 and 4. She also submitted a letter written by D3 to express her regret for the offences and her apologies.  D3 wrote that she lived with her 74 year old mother who had liver cancer and was under observation. Her mother was running out of money and would not be able to obtain proper medical treatment. D3 was also concerned about her 10 year old son.  D3 was now aged 43 years. She was from Mongolia, holding a Mongolian passport. She was educated to secondary level. In Mongolia she worked as a saleslady. She was married and lived in Mongolia with her husband and son. She also said she had uterus cancer. Her husband was a driver in Mongolia earning HK$5,000 to HK$6,000 each month. Ms. Liang submitted that D3’s mother also had hepatitis C. The government in Mongolia did not provide medical care. She had spent HK$15,000 in June, 2015 on medical expenses for her uterus cancer, and required medical check-ups.

Sentencing Considerations

35.I have considered all that has been urged upon me by Counsel on behalf of each Defendant, as well as the contents of their letters submitted to the Court and the various reports that I have called for.

36.In HKSAR v. Padilla Gerardo Gonzaga & Others, CACC 275/2011, referred to in HKSAR v. Tsogbadrakh Otgon, supra, where the 5 defendants, all visitors from the Philippines, came to Hong Kong to attend an international jewelry show at the HKCEC and stole a diamond worth about HK$251,000 which was not recovered, the Court of Appeal said that a starting point of 3 years was unobjectionable.  While finding that the trial judge had erred in enhancing the starting point, the Court of Appeal said:-

“22. The court was however entitled – indeed, duty bound – to give effect to features in aggravation of the offence of theft, though without recourse to the Organized and Serious Crimes Ordinance. The aggravating features were the international element and the facts that the offence was planned and committed by several persons.

23. In our judgment, those aggravating features in the context of a public exhibition of expensive jewelry, warranted in each case a sentence, prior to discount for mitigating features, of four years’ imprisonment.”

37.In HKSAR v. Tsogbadrakh Otgon, supra, the Court of Appeal affirmed a starting point of 4 years’ imprisonment, taking into account the international element, the planning and organization of the offence (Charge 1 in that case), and the involvement of multiple offenders in its commission.  The Court also approved a 3 month imprisonment on account of multiplicity of offences, saying:

“31. As indicated by Judge Chan, and endorsed by Lunn JA, Charge 2 involved a different victim, albeit that the offence occurred on the same day and in the same general area, it was entirely proper to order 3 months of the 3 ½ years’ imprisonment to run consecutively to the 4 years’ imprisonment imposed in Charge 1.”

38.Although Mr. Mitchell has submitted that there were factors that pointed to a lack of professionalism on the part of D1 and D2 and pointed to it being an opportunistic theft rather than an organized one, I do not accept that in respect of any of the defendants. According to their video recorded interviews under caution, D1 said he had arrived in Hong Kong on 26 November, 2015 while D2 said he had arrived on 23 November, 2015. On the same day, 26 November, 2015, they applied for entry permits to the exhibition within minutes of each other. Mr. Mitchell on behalf of D1 and D2 submitted they arrived on different days, D2 on 24 November, 2015 and D1 on 25 November, 2015.  It is clear that they went to the Exhibition Centre to register almost immediately after their arrival in Hong Kong. D3 arrived on 25 November, 2015 and tried to obtain en entry permit to the exhibition but was rejected. On 26 November, 2015, D1 and D2 entered Hall IC at 11.57 hours, each using their own entry permits, while D3 entered Hall 1C at 12.19 hours using the entry permit of another Mongolian.  They left together at 13.31 hours.  At 13.55 hours that day, D1, D2 and D3 entered Hall IC again, this time together, and D1 and D2 used their own entry permits, while D3 used the entry permit of D1’s wife. They left Hall 1C together at 15.19 hours.  They had entered Aidect’s booth at 15.14 hours together.  Each of them had a part to play in the theft from that booth, and this was all captured by the CCTV there.  D1 and D2 have each admitted the theft from Jewelpark’s booth, and the theft was only discovered during a stock check on 27 November, 2015.  The Defendants each have nothing to do with the jewelry trade, yet almost immediately upon their arrival in Hong Kong, they went to register for entry permits to the exhibition.  D1, D2 and D3 acted in concert for the theft in Count 1, and D1 and D2 acted in concert for the theft in Count 2.  The Defendants are all visitors to Hong Kong, and they were arrested when they were about to leave Hong Kong with the property stolen from the two booths.   I find that there is an international element here, and the theft offences were planned and committed by several persons, and it was organized. When D3 was refused an entry permit, she used the entry permit of another Mongolian and also of D1’s wife to enter the Exhibition Hall. The stolen property that D3 handled in Charge 4 were the stolen properties of charges 1 and 2.  The stolen property that D1 handled in Charge 3 was a mobile phone that was stolen on 28 November, 2016 and D1 admitted to handling it on 29 November, 2016.

39.In respect of each of the Defendants, save for their pleas of guilty, which reflects remorse on their part, there is really little mitigation of weight before me.  Although Counsel on behalf of D3 submitted in mitigation that D3 suffered uterus cancer, the medical report before me discloses that she gave a history of right ovary tumour with right ovary resection done in June, 2015. She did experience on and off lower abdominal discomfort after the operation, and she has been referred for specialist investigation. During the current remand, her physical and mental health condition were unremarkable.

40.In the circumstances, the appropriate starting point in respect of Charge 1 for D1, D2 and D3, and Charge 2 for D1 and D2 is 3 years’ and 9 months’ (i.e. 45 months) imprisonment. The starting point for D3 on Charge 4 is 12 months’ imprisonment. 

41.In respect of Charge 3, this is a totally separate and distinct offence from Charges 1, 2 and 4.  The appropriate starting point for D1 for Charge 3 is 12 months’ imprisonment.

42.Little in each of the Defendants’ personal and family backgrounds afford viable or significant mitigation warranting any further reduction in sentence save for the one-third discount they are each entitled to for the pleas, which in my view is the greatest mitigation.

43.D1, D2 and D3 are each sentenced to 30 months’ imprisonment in respect of charges 1. D1 and D2 are each sentenced to 30 months’ imprisonment in respect of charge 2.  D3 is sentenced to 8 months’ imprisonment on charge 4. D1 is sentenced to 8 months’ imprisonment in respect of Charge 3.

44.I do bear in mind the totality principle of sentence. In respect of Charges 1 and 2, the property stolen belonged to 2 different companies.  It is therefore ordered that 2 months of the sentence for charge 2 be served consecutively to the sentence for charge 1 in respect of both D1 and D2.  Therefore D2 will serve a total sentence of 32 months’ imprisonment.

45.In respect of charge 3, I order that 4 months of the sentence be served concurrently with the sentences imposed for charges 1 and 2 for D1 and 4 months be served consecutively to the sentences of Charges 1 and 2.  Therefore D1 will serve a total of 36 months’ imprisonment.

46.In respect of D3, I shall order that 2 months’ of the sentence on Charge 4 be served consecutively to the sentence on Charge 1. Therefore D3 is sentenced to a total of 32 months’ imprisonment.