HKSAR v. Ganbold, Chinzorig and Another

DCCC 56/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 56 OF 2015

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Reasons for Sentence

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1.D2 was charged with two counts of theft, one count of attempted theft with D1 (3rd charge), and one count of possession of dangerous drug, “Ice”. D1 was only charged with the offence of attempted theft. D2 had indicated her pleas earlier and D1 now also pleaded to the charge.

2.Despite the advice from this court, D2 insisted that she does not need any legal representation and fully understands the consequence of her pleas.

3.Both defendants are convicted of their respective charges.

4.I asked the prosecution to prepare a consolidated Summary of Facts for both defendants.

5.At about 4:20 am on 26 October 2014, Station Sergeant Wong was in plainclothes and was carrying out a crowd dispersion exercise in Lan Kwai Fong area.  Sergeant Wong saw D1 and D2 following a group of people and paying attention to the rucksacks of others.  Sergeant Wong followed both defendants and later saw D1 using his right hand trying to pull open a male’s rucksack, but was not successful.

6.Shortly after that, Sergeant Wong saw D2 touch D1’s left elbow and D2 pointed at the rucksack of another male in front of them.  Again, D1 tried to unzip the said rucksack.  It was unsuccessful (Charge 3).

7.Sergeant Wong then intercepted both defendants. Upon search, police found five mobile phones in D2’s handbag.  D2 said one of the phones belonged to her.  Incidentally, one of the mobile phones rang.  It happened that the owner of the phone, PW1 Lee, called and told the police that her phone was lost at about 12:10 am on the same day (that is, 26 October).

8.Both defendants were brought back to the police station.  The police found a transparent resealable plastic bag containing dangerous drug in D2’s handbag.

9.On 28 October, the owner of another mobile phone found in D2’s handbag, PW2 Hu, was located.  PW2 said he last used his phone in Lan Kwai Fong at about 3:52 am on 26 October and only found his phone missing at about 11 am on that day.

10.Phone records show that both D1 and D2 had eight telephone contacts lasting between 4 seconds to 273 seconds between 1:14 am and 3:55 am on 26 October, that is, within three hours before their arrest.

11.In a subsequent video recorded interview, D1 claimed that he went to Lan Kwai Fong to have a drink with a friend (not D2) after having drinks in the area near Chungking Mansion in Kowloon.  D1 passed out and could not recall where he was and what he had done.  D1 admitted that he knows D2.  He should have D2’s mobile phone number and claimed that he had not been in contact with D2 recently.

12.Investigation revealed that both D1 and D2 are asylum seekers and Form 8 visa holders.  They came from Mongolia.

Mitigation

13.D1 is now aged 28 and married.  His education was up to Form 5 level. His wife and the 10-year-old daughter were living in Mongolia.  Counsel for D1 submitted that D1 was remorseful and he pleaded guilty to the charge.

14.D1 first met D2 sometime back in May 2013 when both of them filed their claim as torture claimants.  D1 met D2 the second time on the day of the offence.

15.D1 had been drinking with friends in Tsim Sha Tsui and later met D2 in Lan Kwai Fong.  D1 claimed that he was under the influence of alcohol.  D1 said it was D2 who suggested to make attempt to steal.  D1 wanted to impress D2 and foolishly agreed to assist.  Counsel suggested there were no aggravating features in the 3rd charge that D1 faced. Nothing was stolen and no stolen property was found on D1.

16.D1 knew nothing about the phones in D2’s possession.  D1 did not plan with D2 and he was not the ringleader.  It was peer pressure that D1 committed the offence.  D1 asked for leniency.

17.This court has to advise D2 relating to her mitigation.  D2 apologised for what she did.  She did not make further mitigation.  When asked, D2 said the drugs were obtained from her friend.  She refused to disclose further details.  She also disputed the disposal of exhibits as applied by the prosecution, saying that the police should return the digital camera, one iPhone 5 and the Nokia mobile phone to her.

Sentence

18.D1 is aged 28 and claimed to be a construction worker in Mongolia between 2004 and 2006.  He claimed that he was single and came to Hong Kong in 2007 for the purpose of seeking political asylum (as stated in the antecedent statement).

19.D1 had three similar offences back in 2007 and 2013.  He was discharged from prison in July 2014 and subsequently filed torture claims with the Immigration.

20.When asked, counsel for D1 said D1 came to Hong Kong in 2007, but returned to Mongolia from 2007 till 2012.  D1 came to Hong Kong again in 2013.  What D1 said in mitigation was a bit different from what he admitted in the cautioned interview.  He said he met D2 the second time in Lan Kwai Fong and yet they had eight telephone contacts.  D1 did not admit that he went to Lan Kwai Fong to have a drink with D2 under caution.

21.D2 is aged 32 and attained secondary school education in Mongolia.  She worked as a salesperson in Mongolia from 2006 and 2009, and was single.  D2 came to Hong Kong in 2009.  D2 has six convictions, out of which four related to the offence of possession of dangerous drug.

22.In my view the fact that both defendants are asylum seekers should not be taken as an aggravating factor as they are allowed to stay in Hong Kong temporarily.  That said, one would wonder if the current asylum seeking mechanism is being exploited and manipulated.  It seems to me that D1 was having a leisurely life, at least on the day in question.  He said on 26 October, he had had drinks with his friends in Tsim Sha Tsui and then went to Lan Kwai Fong to meet D2, saying that he wanted to impress D2.

23.I do not accept the version put forward by D1. I am sure that D1 and D2 went to Lan Kwai Fong to look for targets in the early hours of the day.  D1 also occupied a major role in the 3rd charge as he was the one who executed the instruction of D2, who apparently was looking for the right targets at the time.  Both of them acted in concert to pickpocket in Lan Kwai Fong area, taking advantage of the lax level of alertness of those victims who had consumed alcoholic drinks.  It involved certain knowledge and planning on both defendants who preyed on those vulnerable targets.  It is well accepted that the loss of mobile phone not only causes monetary loss to the victims, it also causes great inconvenience to them.  There is also a possibility that the digital images and/or personal data of the owners of the phone were uploaded to the internet, thereby causing serious invasion of personal privacy.

24.I have considered the remarks and sentencing considerations by the Court of Appeal as promulgated in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 and HKSAR v Ganbold Munkh Erdene and another [2015] 1 HKLRD 999.  In the latter case, the two appellants are Mongolian nationals who came to Hong Kong as tourists.  They committed pickpocketing in Tsim Sha Tsui area and stole a wallet from a lady victim.  The Court of Appeal adopted the starting of 15 months and with the aggravating features added 6 months on top of that, making it a starting point of 21 months.

25.In relation to the 3rd charge, of which both D1 and D2 were convicted, I would say that both defendants were making a wise decision as the evidence against them was strong and they could get one-third discount in sentence.  D1 was “lucky” in the sense that, given the circumstances of their arrest and the police observations, the prosecution could have laid a charge of conspiracy to steal against both of them and the gravity of the offence will be heavier.  That said, as I said earlier on, I could only sentence the defendants on the Summary of Facts that they agreed to.

26.An attempt to commit an offence carries the same punishment as if the offence was actually committed.  In relation to the 3rd charge, both defendants made two attempts to steal in public area.  D1 had three similar convictions.  Taking all factors into consideration, as regards the 3rd charge, I would adopt a starting of 18 months.  With their plea, the sentence is reduced to 12 months for the 3rd charge.

27.In relation to the 1st and the 2nd charge for which only D2 was charged, I cannot speculate the role played by the other party, but could only say that the stolen property was found on D2.  The victims lost their phones in the early hours of the day, and both of them had drinks in Lan Kwai Fong.  As far as D2 is concerned, she was about to make the third bite of her chance, with the assistance of D1.  She committed a series of offences during a short span of time in early hours.  She was successful in stealing the two phones.  She had five phones with her when being arrested.  Even if what D2 claimed was true, that is, two phones belonged to her, it also means that three other phones belong to another.  I am puzzled why the prosecution did not lay another charge of theft against D2, even though the owner of the phone cannot be located.

28.Taking all factors into account, I will adopt a starting point of 21 months as the starting point for both charges and sentenced D2 to 14 months.  The sentences of this group of the theft charges, that is, including the 3rd charge, are to be served concurrently.

29.As regards to the 4th charge of possession of 5.1 grammes of methamphetamine hydrochloride that D2 admitted, I would not call for a DATC report in pursuance of section 55A(1A) of the DDO, Cap 134. I would adopt a starting of 12 months and, with D2’s plea, reduced the sentence to 8 months.  I have considered the latent risk factor, but decided not to increase the sentence, even though D2 did not say that she was a drug addict in the antecedent statement.

30.Lastly, I have to consider the totality principle.  The drugs offence is of a nature which is completely different from that of the theft offences.  I order that 6 months of the 4th sentence be served consecutively to the first group of sentence.  That means I sentence D2 to a term of 20 months’ imprisonment and D1 to 12 months’ imprisonment.