HKSAR v. Sarantuya Munkhdelkhii

DCCC 847/2025

[2025] HKDC 2107

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 847 OF 2025

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to two charges of Theft, contrary to section 9 of the Theft Ordinance, Cap 210.

Facts

Charge 1

2.The defendant, a Mongolian national, entered Hong Kong as a visitor on 14 January 2025 and was allowed to stay until 28 January 2025.

3.Around 8:20 p.m. on 22 January 2025, while Ms You (PW1) was shopping in Wellcome Supermarket at Ground Floor, No 104 Cheung Sha Wan Road, Sham Shui Po, she was listening to music through wireless earphones connected to the mobile phone inside her right jacket pocket.

4.When she was standing near a shelf holding some eggs, the defendant walked past her along a narrow aisle and turned left.  PW1 had to move slightly to make room for the defendant to pass.  After the defendant had walked away from her for about 15 metres, her wireless headphones stopped transmitting.  She checked her jacket pocket and found her mobile phone missing.  The matter was reported to the police.

5.The supermarket’s CCTV cameras captured the defendant entering the supermarket around 8:22 p.m. and bumping into PW1 while walking past her around 8:25 p.m. on 22 January 2025.

Charge 2

6.Around 5:45 pm on 24 January 2025, police officers patrolling near the intersection of Cameron Road and Nathan Road in Tsim Sha Tsui saw the defendant acting furtively.  The officers decided to follow the defendant and put him under observation.

7.Around 8:30 pm, the defendant was seen entering “New Balance 1960” shop at Ground Floor, Nos 56-58 Tung Choi Street, Mong Kok.  The defendant left the shop for a short while before returning to it.  At that time, Mr Wong (PW2) was seated on a bench inside the shop trying on some shoes.  The defendant sat behind PW2, stretched his left hand into PW2’s right jacket pocket and took out a mobile phone.

8.The defendant was intercepted and arrested by the police officers when he left the shop with the mobile phone in his hand.

9.CCTV cameras in the shop captured the defendant entering the shop around 8:33 pm, then sitting behind and leaning towards PW2 around 8:37 pm on 24 January 2025.

Defendant’s Background

10.The defendant has a clear record.

11.He is a Mongolian national aged 34 years.  According to the defence, he recently got divorced and his 2 daughters, aged 14 and 4 years respectively, are being taken care of by his foster parents who are retirees and not in good health.  Prior to his commission of the present offences, he was a salesman in a company selling mining drills with a monthly income of around USD1,200.

Mitigation

12.Defence counsel Ms Chong referred to the sentencing guidelines for pickpocketing in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  She identified the aggravating features in this case as: (1) the defendant was a tourist at the time of the offences; (2) the offences were committed in crowded places; and (3) the properties stolen were mobile phones.

13.On the other hand, Ms Chong pointed out that the defendant, who has no previous convictions, committed the offences alone and not as a member of a syndicate without using weapons or tools, and the mobile phone the subject matter of Charge 2 has been recovered.

14.Defence counsel also said that the defendant’s commission of these offences was out of his character, and he resorted to crime simply out of his frustration with his wife’s decision to divorce him.  Given his background, it is unlikely that he will offend again.

15.For his guilty pleas, the defendant is entitled to a one-third discount in sentence.  Ms Chong asks that at least half of the sentence for Charge 2 be made to run concurrently with the sentence for Charge 1.

16.A mitigation letter from the defendant expressing his remorse and tendering his apologies is submitted.

Sentencing considerations

17.According to Ngo Van Huy, the guideline sentence of 12-15 months’ imprisonment after trial is appropriate for a first-time offender.

18.From the relevant CCTV screen captures, the Court took the view with both parties’ agreement that the supermarket and the shoe shop were quite busy and crowded at the relevant times.

19.For Charge 1, I adopt a starting point of 12 months’ imprisonment, give a three-month enhancement for each of the following aggravating features: (1) the defendant came to Hong Kong to commit the offence; (2) the offence was committed at a place in which the public is at particular risk; and (3) the property stolen was a mobile phone.  Taking totality into account, for these 3 aggravating features, the Court will enhance the starting point by 7½ months.  This enhancement will bring the notional sentence after trial to 19½ months’ imprisonment.

20.Reduced by one-third for his guilty plea, which is the only mitigating factor, the final sentence for this charge is 13 months’ imprisonment.

21.For Charge 2, I also adopt a starting point of 12 months’ imprisonment.  The three aggravating features that apply to Charge 1 also apply to this offence.  Another aggravating feature for this charge, for which 1½ months’ imprisonment will be added, is that the defendant committed this offence soon after his commission of Charge 1.  However, no enhancement will be made for his theft of a mobile phone in this incident because it was recovered immediately after it was stolen[1]. The sentence will be enhanced by 7½ months for the other three aggravating factors, resulting in an enhanced sentence of 19½ months’ imprisonment after trial for this charge.

22.His guilty plea will reduce this sentence to 13 months’ imprisonment.

Totality

23.The combined sentence of Charges 1 and 2 is 26 months’ imprisonment.  On account of the totality principle, I order that 7 months of the sentence of Charge 2 are to be served consecutively to the sentence of 13 months’ imprisonment on Charge 1, with the remaining part to be served concurrently, resulting in a total sentence of 20 months’ imprisonment for both charges.