HKSAR v. Tsegmid Nyamdavag (also known as Nyamdavag Tsegmid)

DCCC 67/2022

[2023] HKDC 506

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 67 OF 2022

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of theft, contrary to section 9 of the Theft Ordinance, Cap 210. On 18 August 2021, near No 275A Queen’s Road West, Sai Ying Pun, in Hong Kong, the defendant together with other persons unknown, stole one wallet containing 6 credit cards, one Hong Kong Identity Card, one medical card and cash of $200 Hong Kong currency, property belonging to Wong Man Kei.

SUMMARY OF FACTS

2.At around 6:45 pm on 18 August 2021, Ms Wong (PW1)placed her wallet into her backpack and zipped it after she had made payment at a pharmacy at 200 Des Voeux Road West.

3.At around 6:52 pm, the defendant together with three other wanted persons (WP1-3)  were at Des Voeux Road West.  When PW1 walked passed defendant and WP2-3, who then immediately turned around and followed PW1.  Meanwhile, the defendant walked on PW1’s right, and talked on the phone.  Around 7:01 pm at Queen’s Road West, Sai Ying Pun, WP1-3 followed closely behind PW1 and WP3 took PW1’s wallet from her backpack.

4.Soon thereafter, the defendant and WP1-3 were together at 297 Queen’s Road West and the defendant continued talking on the phone. 

5.PW1 had felt her backpack sank once.  PW1 then discovered that her backpack was unzipped and her wallet was missing.  The wallet contained her Hong Kong identity card, six credit cards (including a HSB card and three HSBC cards), a medical card and HK$200 cash.

6.Around 7:08 pm, WP2 entered into a 7-Eleven at Queen’s Terrance, 1 Queen Street.  WP2 requested to purchase four $5,000 worth iTunes cards and paid with PW1’s HSB credit card.  The first two purchases were successful but the remaining two failed.

7.Between 7:19 pm and 7:21 pm, PW1’s three HSBC cards were used at another 7-Eleven, located at 331 Queen’s Road Central.  The 1^st HSBC card made a successful purchase of HK$5,000 worth iTunes card, followed by an unsuccessful $5,000 purchase.  Then the 2^nd and 3^rd HSBC card were used to make a total of three $5,000 purchases, but they all failed.

8.At the material time, the defendant together with persons unknown, stole PW1’s wallet and the contents therein.  The defendant is a Form 8 holder.  He was arrested on 6 August 2021 in Tsim Sha Tsui.

CRIMINAL RECORD OF THE DEFENDANT

9.The defendant has 2 previous criminal convictions of pickpocketing.  The last conviction was sentenced on 28 May 2019.

MITIGATION

10.The defendant is now aged 38.  He received education up to primary 5.  He is single.  His mother is now 66 years old and she is living with defendant’s two elder sisters in Mongolia.  He is a Mongolian national and a holder of a Form 8 recognizance living in the assistance of the International Social Service of Hong Kong (ISS)  with a subsidy of $2,500 per month.  Mitigation letters written by the defendant and his aunt were submitted.

11.It was submitted by the defence that the defendant foolishly breached the law as he was not allowed to work in Hong Kong and the assistance he received was not sufficient to cover his basic needs.  The defendant was only offered a meal from others and did not receive any monetary reward in this offence.

12.It was also submitted by the defence that there were several aggravating factors in the present case, including the fact that the defendant is a form 8 holder, the defendant’s two previous similar convictions, and that the offence was committed together with 3 other wanted persons.  The defendant acknowledged that in addition to the monetary loss, the lost of HKID card can cause considerable inconvenience to PW1.

13.It was further submitted by the defence that the total amount of stolen items and the defendant’s financial gain was not on the higher end for cases of similar nature.  It was not committed sophistically, nor any equipment was involved.  The authorities which defence cited for court’s reference are HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, HKSAR v Wong Kang Sun [2014] 1 HKLRD 622, HKSAR v Nguyen Van Long DCCC 296/2020 and HKSAR v Erdenebat Bolorjargal & Anor DCCC 115/2020.

14.The defendant has written to the Immigration Department to withdraw his non-refoulement claim.  He therefore would be returned to Mongolia upon his release for the present case.  The defendant asked for a lenient sentence so that he could return home as soon as possible.

SENTENCE

15.I have considered the nature of the offence, the admitted facts of the case, the background of the defendant and the mitigation submitted by the defence.

16.This is a case of pickpocketing.  The Court of Appeal has set out sentencing guideline on pickpocketing.  The usual starting point for a first offender of pickpocketing without aggravating features should be 12 to 15 months’ imprisonment. (see HKSAR v Ngo Van Huy [2005] 2 HKLRD 1)

17.The aggravating features in this case include that the defendant is a form 8 holder, and that the offence was jointly committed together with 3 other wanted persons.  Moreover, credit cards were immediately used upon stolen from PW1, this is also an aggravating factor admitted by the defence.  In total, three transactions were successfully made thereafter in the vicinity until the purchase become failed causing a total loss at HK$15,000.

18.Having considered the facts of the case, I adopt a starting point of 12 months’ imprisonment.  In view of the above three aggravating features, I enhance the starting point by 9 months.  Accordingly, the starting point is 21 months’ imprisonment.

19.The defendant has two previous similar convictions and he committed the present offence not long after he was released from the last.  I am also told that he had withdrawn his non-refoulement claim and would be sent back to Mongolia after this case.  I would consider to give him a last chance and do not further enhance the sentence in this regard.

20.It is agreed by both parties that the defendant has previously pleaded not guilty to the charge, however, the legal representative of the defendant wrote to the court and the prosecution that the defendant changed his intended plea to that of guilty around two and a half months before trial.  As such, one-fourth discount would be given upon defendant’s guilty plea, the sentence is 15 months and 3 weeks’ imprisonment.