HKSAR v. Borbanid Otgonjargal

DCCC 379/2018

[2019] HKDC 95

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 379 OF 2018

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Reasons for Sentence

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Charge and facts

1.The Defendant (“D”) pleads guilty to a charge of theft. 

2.On 2 March 2018, D entered Hong Kong as a visitor on strength of his Mongolian passport.

3.At about 4:50 p.m. on 4 March 2018, PC 54153 (PW1) was conducting plainclothes anti-theft patrol in the vicinity of IFC Mall. He saw D and another male (WP5) acting suspiciously at the footbridge connecting IFC Mall and General Post Office, where they were looking at the personal belongings of the pedestrians. Shortly afterwards four more males (WP1-4) joined D and WP5 at the footbridge and they appeared to be chatting to each other. PW1 kept them under observation.

4.Later, D pointed to a man, who was carrying a green shoulder bag at his back (PW4, a Japanese visitor) and WP1-5 were staring at PW4. WP1-5 and D then followed PW4 into IFC Mall. At this moment, two of the males were walking in front of PW4, while the others (including D) were walking behind him. When PW4 was on the escalator down to the ground floor, he was surrounded by WP1-5 and D with D at the back holding both handrails to prevent other pedestrians going near PW4. One of the males (WP1) then opened the zipper of PW4's shoulder bag, stole a black wallet therein and put it into the right pocket of his trousers. Once WP1-5 and D reached the ground floor, they left separately via different exits.

5.PW1 immediately notified his colleagues and pursued WP1. He was able to get hold of WP1's rucksack, but WP1 managed to escape at the end. On the other hand, D was intercepted by SGT 53154 (PW2) at the footbridge connecting IFC Mall and General Post Office, near the exit to the junction of Man Yiu Street and Lung Wo Road. D tried to escape but was eventually subdued. D kept struggling until he was handcuffed by PW2 with the assistance from other police officers arrived. D was arrested for 'Pickpocketing".

6.PW4 was subsequently located. He confirmed that his wallet, which contained cash of 30,000 Japanese Yen, 200 Renminbi, 200 Hong Kong dollars, two visa credit cards issued by Japanese banks, one ATM card issued by a Japanese bank and a hotel key card, was stolen. The wallet was valued at 1,500 Hong Kong dollars.  His wallet and property therein could not be recovered. 

Mitigation

7.The Defendant is 32 years of age.  He has a clear record in Hong Kong.  His family, comprising his wife, three daughters and a son, aged between 8 years and 10 months, is in Mongolia.     

8.His counsel Mr. Ng draws my attention to the fact that the Defendant had written in through his solicitor on 12/11/2018 to indicate his intention to plead guilty before trial scheduled for 14/1/2019.  Mr. Ng urges me to consider a 25% discount according to HKSAR v Ngo Van Nam CACC 418/2014.   

9.As a sentencing example Mr. Ng refers me to HKSAR v Xiao Ping and 2 Others CACC 147/2012.  There were 3 accomplices who attempted but failed to steal from a victim at a location which was not busy.  The Court of Appeal regarded that the proper starting point should be 21 months.  

Sentencing considerations

10.Where the act was well-orchestrated by a number of accomplices, heavy sentences shall be imposed (HKSAR v Chan Mei-yee Carman [2010] 4 HKC 571).  Being a foreigner coming to commit the crime was another aggravating feature.  A guideline starting point of 12 – 15 months is warranted for a first time offender with no aggravating features in the case (HKSAR v Ngo Van Huy [2004] HKCA 282). 

11.From a basic starting point of 15 months I work out the actual starting point.  Although the gang had not used any tools, there were six of them working on a single victim.  On this note the starting point is to be 30 months.  Besides, this was a crime against the safety of the community, a most unconscionable way to repay the courtesy of Hong Kong for granting his visit.  I add another 6 months to the starting point. 

12.From an overall starting point of 36 months I give a 25% discount for the slightly late plea of guilty.  The sentence is 27 months.