HKSAR v. Turbat Undrakhbayar and Another

DCCC 808/2021

[2022] HKDC 746

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 808 OF 2021

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REASONS FOR SENTENCE

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1.D1 and D2 are jointly charged with one count of theft by pickpocketing.  They are charged that on 21 May 2021, outside Dragon Centre, No 37K Yen Chow Street, Sham Shui Po, Kowloon, in Hong Kong, together with 3 other persons unknown, stole one wallet, 5 bank cards, one Hong Kong Jockey Club card, one Hong Kong Identity Card, one Home Visit Permit, cash of HK$160 and some papers, property belonging to Wong Chuen-fung.

2.D1 pleaded guilty and admitted the summary of facts.  He is duly convicted.

3.The gists of the summary of facts admitted by D1 are as follows: -

The offence was committed by a group of 5 persons acting in concert. D1 and D2 were amongst the group, there were 2 other males (referred to as A and B)  and one female (referred to as C). The police found this group acting furtively on the MTR train platform and kept them under observation. The group left the MTR station and out onto the street, they kept approaching pedestrians and glaring at their handbags. The offence was eventually carried out at Yen Chow Street. The entire group followed closely behind a female (the victim)  on the pedestrian crossing. Male A pointed at the victim and talked to D2 behind him. D2 immediately held a scarf in front of his waist, D1 approached and maintained close distance to Male A, the rest of the group acted as lookout. Just before the victim reached the other side of the road, Male A unzipped the victim’s shoulder bag, took out a wallet and handed it over to D1, whilst D2 was using the unfolded scarf to block the view. The police officers took action and caught D1 and D2, the rest of the group managed to make good their escape.

4.D2 pleaded not guilty.  He is convicted after trial.

Record

5.D1 has 6 previous conviction record, 5 of which are of similar nature including 2 theft by pickpocketing.

6.D2 has 4 conviction record all of similar nature.

D1’s Mitigation

7.D1 is 33 years of age.  He was born in Mongolia and is single.  His family is in Mongolia.  He is a university graduate with a degree in IT Engineering.

8.He left Mongolia in 2015 for fear of his personal safety.  His younger sister was dating a gangster whom her family disapproved.  D1 ended up having a fight with this gangster.  The gangster’s group hatched a plan to seriously injure D1 and so he left his homeland and came to Hong Kong in 2015.

9.After he came to Hong Kong, he soon ran out of money.  Under the influence of some undesirable Mongolian friends he met, he committed theft and was sent to prison.  After discharged from prison, he applied for asylum and his application is being verified.

10.When his family found out he had been in trouble with the law in Hong Kong, although angry with him, they started remitting HK$3,000 every month for his support to supplement the living allowance he received from the International Social Service.  He made use of the remittance to rent a room in Mongkok.

11.Unfortunately his mother lost her job in early 2020 due to COVID related economic downturn.  Then his grandmother passed away in 2020, followed by the death of his father in 2021, his family could not afford to send money to him anymore.

12.He soon ran out of money and was chased by his landlord for his overdue rent.  Under such circumstances, he turned to his friends for assistance.  He was persuaded to join them and so he ended up committing the present offence and the other offence in 2021.

13.He regrets and aggrieved for not able to be with his grandmother and father in their final hours or attend their funeral.  He has decided to return permanently to Mongolia after he served his sentence in Hong Kong.

14.His Filipina girlfriend wrote a letter for mitigation on his behalf.  She praised his good character.  She also mentioned about her miscarriage and lost their first baby whilst D1 was in prison.  She asked for leniency from this court.

15.His counsel Mr Khosa refers the court to the case HKSAR v Ngo Van Huy, CACC 107/2004 which is the sentencing authority for pickpocket cases.  In that case, the Court of Appeal stated the starting point should be 12-15 months’ imprisonment for a first offender, and provided the guidelines and principles for cases with aggravating features.

16.In the case of D1, the aggravating features are: - (a)  repeat offender; (b)  Form 8 holder; and (c)  premeditated offence committed by a group.

17.Mr Khosa also draws the court’s attention to D1’s latest conviction record.  On 9 September 2021, D1 was sentenced to 12 months’ imprisonment for Attempt Theft (E/965/2021).  According to his instructions, D1 committed that offence after the present case (which in fact is before).  D1 wanted to plead guilty.  He sought advice from the duty lawyer if both cases could be consolidated so that the sentence on both cases could be dealt with together at the same time.  He was advised by the duty lawyer that the 2 cases were in different courts and could not be dealt with together.  So D1 pleaded guilty and was sentenced in Eastern Magistracy to 12 months’ imprisonment. D1 has finished serving that sentence by 13 May 2022.  Counsel submits, had that case been sentenced together with the present case, it is highly likely that only a portion of that sentence would have been made consecutive to the sentence for the present case due to the totality principle.

D2’s mitigation

18.D2 was born in Mongolia.  He is 31 years old.  He received up to secondary education.  He is married, his wife and son are in Mongolia.  He worked as a construction worker in Mongolia earning about equivalent to HK$3,000 per month.  He came to Hong Kong legally in September 2018.  He lost his passport and so he applied for a replacement passport.  Before the replacement passport was issued, he found his old passport but had expired.  He became an over-stayer and claimed himself a torture claimant.  He relied on the allowance provided by the International Social Service for his living in Hong Kong.

19.His counsel Mr Tsoi received a letter for mitigation today written by D2 himself.  D2 claims his family house in Mongolia was burn down, his grandmother and his younger brother were injured in the fire.  D2 wishes to return to his homeland to look after his family and ask for court’s leniency.

20.His counsel also refers to Ngo Van Huy’s case.  In the case of D2, the aggravating features include: - (a)  Joint enterprise; (b)  D2 is a torture claimant; (c)  the offence was committed in crowded areas where the pedestrian traffic was heavy; (d)  D2 has multiple similar record; and (e)  prevalent offence in Hong Kong.

21.His counsel also refers to an authority HKSAR v Sandagdorj Altankhuyag & Another [2014] 1 HKC 206 for court’s reference.

CONSIDERATION

22.I have considered the authorities referred to me by defence counsels and also the 2 authorities from prosecution: -

(1)  HKSAR v Ganbold [2015] 1 HKLRD 999

(2)  HKSAR v Singh Gursevak [2019] HKCA 179

23.The basic sentence for theft by pickpocket laid down in HKSAR v Ngo Van Huy, CACC 107/2004 is 12-15 months’ imprisonment after trial for a first offender.  Neither D1 nor D2 comes into that category for they are repeat offenders.  A higher starting point should be adopted for each of them.  If there are aggravating features, the sentence should be increased.  In the case of R v Vy Van Kien & Another [1991] 1 HKLR 422, Penlington JA said at p 427: -

“Each case must always be treated on its own facts and the circumstances of each offence and offender will always vary. However from a consideration of the relevant authorities it has been accepted that pickpocketing has become prevalent in Hong Kong and, if a sentence of imprisonment is called for, a starting point of 12-15 months after trial is correct. This should we increased if there are aggravating factors such as the use of a weapon, like a razor-blade, or if the offence is committed in a place where the public, though no fault of its own, is at risk. This would include all forms of public transport and such crowded places as the race courses. Another aggravating factor which would certainly call for a substantial increase in sentence would be evidence that the offender was acting in concert with others in a well organised gang operation.”

24.The guidelines and principles provided by the Court of Appeal in Ngo Van Huy’s case are applicable to the aggravating features in the present case.

25.In the present case, there is evidence from the observing police officer that the offence of pickpocketing involved 5 culprits.  In my view, such a fact is rather alarming. Of the 5 of them, each had a specific role to play in their operation.  After the apparent leader of the gang picked a target, all of them then followed closely behind the victim who was crossing the road on a pedestrian crossing, when the leader started to steal from the victim’s shoulder bag, the culprit (D2)  behind him held up a scarf to conceal his action, when the leader successfully took out a wallet from the victim’s shoulder bag, he passed the wallet to another culprit (D1)  to avoid detection, the remaining two culprits were acting as lookout.  It is apparent the offence was premeditated and their operation was well-planned.  Both D1 and D2 are part of such organized and professional ring of thieves, a substantial increase in sentence should be called for.

26.The offence was committed in Sham Shui Po, a usually crowded district popular and well known to locals as well as visitors to go to, whether for shopping or just browsing for there is a large computer centre, wide variety of shops for electronic accessories and different kind of consumer goods, street hawker stalls for new or second-hand goods, and eateries.

27.Both D1 and D2 are repeat and persistent offenders.

28.Between 2015 and 2021, D1 has accrued 6 conviction records, mostly of similar nature.  On 19 October 2015 he was convicted for theft and was sentenced to 4 months’ imprisonment; on 25 October 2016 he was convicted for theft by pickpocketing and assaulting a police officer and was sentenced to 8 months’ imprisonment and 2 months’ imprisonment respectively; on 2 June 2017 he was convicted for possession of dangerous drugs and was sentenced to 1 month’s imprisonment suspended for 18 months; on 22 January 2018 he was convicted for theft and breach of suspended sentence and was sentenced to 8 months’ and 1 month’s imprisonment respectively; on 16 January 2019, he was convicted for theft by pickpocketing and was sentenced to 9 months’ imprisonment; and on 9 September 2021 he was convicted for attempt theft and was sentenced to 12 months’ imprisonment.

29.Between 2018 and 2020, D2 has accrued 4 conviction records all of similar in nature.  On 22 March 2018 he was convicted for theft (shoplifting)  and was sentenced to 2 weeks imprisonment; on 30 August 2018 he was convicted for attempt theft (pickpocket)  in 2 different cases in different area and was sentenced to 10 months’ imprisonment and 13 months 2 weeks’ imprisonment respectively and the court ordered 5 months out of the 10 months’ imprisonment in E/1653/18 to run consecutive to the sentence imposed in WK/2174/18; his last conviction was on 6 January 2020, he was again convicted for attempt theft (pickpocket)  and was sentenced to 14 months’ imprisonment.

30.From the antecedent statement, I note D2 was last discharged from CSD custody on 9 October 2020.  He committed the present offence on 21 May 2021 which means he re-offended 7 months after discharged from prison.  It is apparent the sentences imposed on him in the past have no deterrent effect on him.

31.Notwithstanding this case is the theft of a wallet, a small amount of cash (HK$160), the rest of the stolen items are credit card, bank cards, a Hong Kong identity card, home visit permit and personal effects,  in Ngo Van Huy’s case, the Court of Appeal expressed this view: -

“Theft by pickpocketing can be regarded as the type of offence that society severely and rightly condemns. Although in many cases, the value of the items stolen may not amount to much, the significant degree of inconvenience, the relative case with which it can be effected by a direct invasion of or about the person and privacy of those minding their business in public places, and the adverse reputation that this type of crime collectively brings upon a city makes this offence a particularly serious one. It is one which attracts, justifiably in our view, a heavy penalty.”

32.In the present case, there is an obvious need to impose a deterrent sentence on D1 and D2 in order to protect our society from criminals like them.

33.As mentioned in preceding paragraph, the basic starting point of 12-15 months’ imprisonment does not apply to these 2 defendants.  The circumstances of the theft in the present case warrant for a higher starting point.  I adopt 16 months’ imprisonment as the starting point.  An additional 8 months should be added on to reflect the aggravating features in this case, the sentence comes to 24 months.

34.Further, I should consider whether the sentence be enhanced in view of the fact that both D1 and D2 are Form 8 recognizance holders.

35.The Court of Appeal in HKSAR v Sandagdorj Altankhuyag & Another [2014] 1 HKC 206 made the following remarks: -

“The second matter which stands out from the facts of this case concerns the 2^nd appellant. He was a torture claimant who, like many in his position, was not lawfully in Hong Kong but was nevertheless allowed to remain at liberty by virtue of a recognisance issued by the Director of Immigration whilst his claim was being processed. Yet, despite the hospitality extended to him by the authorities and people of Hong Kong, he chose to abuse that privilege by targeting an area well known as a tourist destination, and one that is frequented by significant numbers of tourists and locals alike, in order to steal.”

36.The Court of Appeal also referred to the remarks made by P Chan J in the case of R v Saldana Alca Jose and Another, CACC 655/1996, in giving the judgement of the Court of Appeal, the following: -

“We take this opportunity to indicate that in our view, because of their seriousness, organized crime of this nature including group pickpocketing, even without international ramifications, might in future properly attract a starting point of at least 2 1/2 years’ imprisonment.”

37.The Court of Appeal in the case of HKSAR v Singh Gursevak, CACC 139/2018 provided the following principles: -

“(i)  the purpose of the enhancement is for the courts to “mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of the city”;

(ii)  the enhancement must be of such a length that it will deter Form 8 holders from becoming involved in serious crime; and

(iii)  in order for the enhancement to have a meaningful deterrent effect it generally should not be less than 6 months for serious offences.”

38.Having taken into consideration of the above guidelines, the final sentence to be imposed on D1 and D2 should be 30 months’ imprisonment.

39.For D1’s timely plea, he is entitled to the usual 1/3 discount on his sentence.  After discount, his sentence is reduced to 20 months’ imprisonment.

40.As to whether the sentence should be adjusted downward to reflect a portion of the sentence of 12 months’ imprisonment imposed on him in case E/965/2021 may possibly be ordered to run concurrent with the sentence in this case if both cases are to be sentenced at the same time, I considered the case AG v Lui Kam Chi [1993] 1 HKC 215, I do not think D1 is entitled to have his sentence further discounted.  According to Mr Khosa, the attempt theft case was committed 2 months before the offence in the present case.  The 2 offences were committed on an entirely different date and place from the present offence, according to Lui Kam Chi’s case, the sentences should be served consecutively.

41.D2 is convicted after trial, hence, he is not entitled to any discount on his sentence.

SENTENCE

42.D1 is sentenced to 20 months’ imprisonment.

43.D2 is sentenced to 30 months’ imprisonment.