HKSAR v. Ul Oldokh Odgerel and Others

DCCC 476/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 476 OF 2013

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Reasons for Sentence

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1.The five defendants were charged with two counts of theft. They pleaded not guilty to the charges. At the end of the trial, I acquitted D2 of all the two charges and convicted D1, D3, D4 and D5 of the 1st charge of theft and D1, D3 and D4 of the alternative verdict of handling stolen goods relating to the 2nd charge.

2.The 1st charge of theft related to the stealing of 10 diamonds at one of the booths in the Jewellery Show at the Hong Kong Convention and Exhibition Centre on 3 March 2013.  The total value of the diamonds was about HK$150,000.  Only six diamonds belonging to the victim can be recovered.  The 2nd charge of theft related to the theft of a chain of coral beads and a packet of 30 pieces of coral beads worth about HK$538,000. Most of the stolen properties were recovered from D3’s suitcases. 

Mitigation

3.D1 has attained secondary education level in Mongolia.  Contrary to what was stated in the antecedent statement, D1 claimed that she had never been a farmer and instead she became a self-employed person in sewing business since her graduation in 1986.  Also, she was not a divorcee and has two daughters and one son.  Her husband was a company car driver.  D1 earned about HK$2,000 per month.  Her first visit to Hong Kong was in 2008 and this was her second visit.  D1 has regular headaches.  Counsel for D1 also asked this court to consider the factor of “foreignness” as mentioned in the case of AG v Pedro Nel Rojas [1994] 1 HKC 342.  All the stolen property in Charge 2 and most of the stolen property in Charge 1 were recovered.  Counsel for D3 submitted that D3 was running a food stall, not exactly a restaurant in Mongolia.  She earned about HK$5,000 per month. Counsel for D4 said D4 came to Hong Kong for the first time.  She runs a small business earning about HK$2,000 per month.  It was urged that the two offences should be taken as one single event.  Counsel for D5 submitted that D5 was convicted of Charge 1 only.  She has two daughters aged 13 and 8.  She did not challenge most of the prosecution’s case.

Sentence

4.Hong Kong has a good reputation in holding large-scale international jewellery exhibitions.  Regrettably, theft of jewellery items, which are often of high value, also occurred frequently during the show.  At times, culprits came from different parts of the world.  It is important to send a clear message that a deterrent sentence will be imposed if perpetrators come to Hong Kong to commit this kind of crime.  It affects adversely the reputation of Hong Kong in holding this kind of shows and has a negative impact on the security measures provided by the organisers.

5.There is no sentencing guideline in this kind of theft case.  But, as I said, it is important to impose a deterrent sentence to deter culprits coming to Hong Kong to perpetrate the crime.  All four defendants had clear record in Hong Kong.  Counsel for D1 submitted that this court should consider the factor “foreignness” of the defendant.  However, it is exactly this factor of “foreignness” that constituted the international element when the crime was perpetrated.

6.The facts of this case are similar with that in HKSAR v Padila Gerardo Gonzaga & 4 Others CACC 275 of 2011 where five applicants from the Philippines came to Hong Kong to attend the international jewellery show at the Hong Kong Convention and Exhibition Centre in November 2010.  They stole a diamond worth about HK$251,000-odd and the stolen property has not been recovered.  There was an enhancement of sentence under OSCO in that case.  The Court of Appeal said the starting point of 3 years was unobjectionable.  That said, while rejecting the application for enhancement of sentence, the Court of Appeal made it clear that those aggravating features, namely, the international element and the facts that the offences were planned and committed by several persons, in the context of a public exhibition of expensive jewellery, warranted in each case a sentence, prior to discount for mitigation features, of 4 years’ imprisonment: see paragraph 23 of the judgment.  

7.In the present case, the international element was obvious as two groups of Mongolians came to Hong Kong separately.  I found that the trip to Hong Kong with the purpose of attending the show was planned in advance, and apart from the four defendants, there were other people involved.  These four defendants, as can be seen in the CCTV, were relatively well-dressed, not in tracksuits or any kind of casual wear.  Each of them prepared with their individual official name card in order to satisfy the registration requirements.  They pretended to be in the jewellery or related business.  D3 even had her buyer’s badge from the China Import and Export Fair held in China (Exhibit P171).  The police recovered some other jewellery items even though the said items are not the subject matter of the charges for which I will disregard for the present purpose of sentencing.

8.The 1st charge involved some $156,000 worth of jewellery while the 2nd charge $538,000.  Most of the stolen properties were recovered.  All four defendants had clear record in Hong Kong but they were convicted after trial.  D1 challenged her VRI with various allegations against the police officers, and she testified to that effect.  I cannot see any remorsefulness in the mitigation put forward by the four defendants.  The two offences were committed within a short span of time on the same day.

9.Taking all factors into account, for Charge 1, I will adopt a starting point of 4 years.  As D1, D3, D4 and D5 were all convicted after trial, I will sentence them to 4 years’ imprisonment.  As regards the alternative verdict of handling stolen goods, I will adopt a starting point of 3 and a half years.  I sentence D1, D3 and D4 to a term of 3 and a half years.  I have to consider the totality principle.  It would be wrong to send a message to the culprits that the more criminal wrongs they committed, the more discount in sentence they could get.  The second offence also stemmed from the theft on the same day and in the same venue.  I would order that 3 months of the second sentence to run consecutively to the first sentence.  As such, I sentence D1, D3, D4 to a total sentence of 4 years and 3 months; and D5 to 4 years.