HKSAR v. Khurelkhuyag Khasbat

DCCC 236/2019

[2019] HKDC 952

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 236 OF 2019

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty to one count of attempting to obtain property by deception.

2.The Summary of Facts admitted by the defendant reveals that in the evening of 30 November 2018, a team of police officers spotted the defendant acting furtively on the street in Tsim Sha Tsui, Kowloon.  The defendant was seen to have entered a jewellery shop.  Police officers then put the defendant under observation.

3.In the jewellery shop, the defendant requested to purchase a gold necklace which was worth approximately HK$22,000.  He presented a credit card in the name of Michael Marsden to pay for the necklace.  When the shop staff was processing the transaction with the credit card, the defendant became more nervous and asked for the return of the credit card, saying that he no longer wished to make the purchase.  The defendant suddenly left the shop before the purchase transaction could be completed without taking back the credit card.  At this juncture, the police officers intercepted the defendant outside the shop.

4.Upon body search, two more credit cards, both in the name of M J Marsden, were found inside the defendant’s wallet.  Upon enquiries by the officers, the defendant claimed that he had just picked up the credit cards from Star Ferry earlier.  The defendant was then arrested.

5.Immigration records check revealed that the defendant had arrived in Hong Kong two days ago on the strength of a tourist visa.

Background and mitigation

6.The defendant is a Mongolian having a clear record in Hong Kong.  In mitigation, Mr Polson, on behalf of the defendant, tells the court that the defendant completed his university education and received an MBA degree by part-time studies.  He is married and his wife gave birth to her daughter when the defendant was detained for this matter.  His mother also passed away during his remand.

7.It is submitted in mitigation that the defendant was in fact in transit from Manila to Mongolia, staying in Hong Kong for a few days.  The credit card the defendant used and the other credit cards found in his possession were picked up by the defendant earlier on the day together with a map from a footpath.  Having wandered around for a while and on the spur of the moment, the defendant decided to use the credit card to buy a present for the doctor who treated the defendant’s mother who was then in intensive care to show his appreciation.  It is emphasized that there was no planning at all in this case.  Counsel stresses that it was an attempt case only and that the loss of the jewellery shop would be less than the price of the necklace.

8.Mr Polson properly draws my attention to R v Chan Sui To, the authority case in the sentencing of this type of offence, and also a recent case of the Court of Appeal, HKSAR v Li Chi Yat, CACC 189/2018.  In the latter case, the Court of Appeal allowed the appeal against a sentence of 2 years and 3 months and reduced it to 19 months’ imprisonment.  The case concerns an appellant being employed by a transport company stole the wallet of one of the owners of the company who left his wallet in a vehicle that the appellant later used in doing his delivery job.  The appellant later used it in three attempts to purchase certain items, one of them being successful in the purchase of a mobile phone in the sum of about $8,000.  The Court of Appeal said the appropriate starting point for each of the deception charges should be 2 years’ imprisonment.  I have also considered the case of HKSAR v Tu I Lang, CACC 464/2006.

9.The claim of the defendant that the three credit cards were only picked up on the street a little earlier before the time of the offence is not challenged by the prosecution.  I also note that it was also the explanation offered by the defendant after he was arrested.  I therefore accept the defendant’s claim, for the purpose of sentencing, that he just picked up the credit cards not long ago before he committed the present offence.  In the circumstances, I accept that it was not a premeditated offence and there was no planning in the commission of the offence.  The defendant committed the offence by himself.

10.The potential loss in the case is one factor to be taken into account in considering the proper sentence of the defendant.  While the loss to the jewellery shop should be less than the price of the necklace, the potential loss no doubt would not be a small value.  The defendant was a visitor to Hong Kong.  He was not expected to commit any offences here when we extended our hospitality to him during his stay in Hong Kong.  He was in possession of three credit cards belonging to another. 

11.In all the circumstances of the case, I would adopt 2 years and 3 months’ imprisonment as the starting point of the offence.

12.I have sympathy for the defendant that he could not be present when his mother passed away and the daughter was born.  I am afraid, however, that I cannot allow further reduction of sentence for these reasons.  I would only allow one-third discount to him for his plea of guilty. 

13.The defendant is therefore sentenced to 18 months’ imprisonment.