HKSAR v. ENKHBAYAR BAYARMAGNAI

DCCC 254/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 254 OF 2014

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HKSAR
v
Enkhbayar Bayarmagnai

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Before: HH Judge Casewell

Date: 16 July 2014 at 3.30 pm

Present: Ms Nisha Mohamed, Counsel on fiat, for HKSAR
Mr Cheung Kin-bor, Michael, instructed by Tang, Leung, Li & Tsang, assigned by the Director of Legal Aid, for the defendant

Offence: (1) to (7) Obtaining property by deception (以欺騙手段取得財產)
(8) to (9) Theft (盜竊罪)

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Reasons for Sentence

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1. The defendant has pleaded guilty to a total of nine charges: seven of obtaining by deception and two of theft. He has admitted thefacts and I have convicted him of those offences.

2. In brief, the facts show that on 28 April 2012, PW1’s wallet was stolen from a shop where she had left her handbag. This formsthe facts of Charge 8. The wallet contained a Bank of China platinum MasterCard, a credit card referred to as card 1.

3. On the same day, six fraudulent transactions were performed with this card, totalling $17,600 worth of goods. The defendant wasconfirmed to have used the card in three transactions in Coxell Digital Limited. This forms Charge 1. He obtained goods to thevalue of $15,735.

4. On 19 July 2012, PW3’s cardholder was taken from her handbag. It contained three credit cards referred to in the facts as cards2, 3 and 4. All of them were Visa credit cards, and all the three cards were used to perform 21 transactions with over $72,000 worthof goods taken. In respect of card 2, four of the transactions on that card were confirmed to be made by the defendant at two separatelocations to obtain goods valued at $6,698. Those are Charges 2 and 3.

5. In respect of Charge 4, one transaction was confirmed to be made by the defendant to a value of goods worth $2,180.20.

6. In respect of card 3, two transactions were confirmed to be made by the defendant to a value of goods worth $16,350, and that formsCharge 5.

7. On 19 September 2012, PW2’s bag containing a Bank of China Visa card, amongst other items, was stolen by the defendant. This isreferred to as card 5 and forms Charge 9. The card was found to be used in 15 fraudulent transactions to the value of $36,629.70. Of these transactions, three were found to have been attributable to the defendant in two separate shops to obtain goods to thevalue of $5,682, and these form Charge 6 and 7.

8. In total, the defendant has stolen two wallets and their contents, including the company cards, and used five stolen credit cardson 13 occasions at seven different locations to obtain goods worth $46,645 on three separate days.

9. The defendant is from Outer Mongolia. He is aged 37. He is a married man with three children aged 12, 4 and 2. His wife is a laboratorytechnician. He has had employment as a construction site inspector, earns about $2,000 per month. The defendant accompanied hiswife in December 2013 on a shopping trip and was arrested at that time. He makes full admission of the offences and shows his remorse.

10. As far as sentencing is concerned, the defendant is involved in what would be described in the case of Chan Siu To as a small-scale criminal operation in Hong Kong involving stolen credit cards in that the total obtained is below $50,000 in totalby him. The appropriate starting point for such offences can be in the region of 3 years’ imprisonment.

11. For the theft offences, there is no guideline sentence. However, a sentence of imprisonment is appropriate.

12. I consider that the appropriate starting point in respect of each of the offences of obtaining by deception will be one of 3 years’imprisonment. The defendant is entitled to a discount from that of one-third which brings the final sentence on those offences toone of 2 years’ imprisonment. So on Charges 1 through to 7, it is a sentence of 2 years’ imprisonment on each.

13. Charges 8 and 9 involve the thefts of the handbags with the accompanying cards. On each of those, I will take a starting point of18 months’ imprisonment and reduce that to 1 year’s imprisonment, having regard to the defendant’s plea of guilty. So a sentenceof 1 year’s imprisonment on Charges 8 and 9.

14. I have observed, these offences form sets. Charges 1 and 8 relate to the offences committed on the same occasion; 2, 3, 4 and 5 tooffences on the same occasion; and 6, 7 and 9 to offences on the same occasion. Nevertheless, they were committed on three separateoccasions. Such offences can be served consecutively or at least partly consecutively. When setting whether the offences shouldbe served concurrently or consecutively, I must have regard to the overall totality of sentence which is appropriate for this case.

15. I have determined to sentence as follows. Charges 1 and 8 will be served concurrently to each other. Charges 2, 3, 4 and 5 willalso be served concurrently to each other. Charges 6, 7 and 9, sentences on those will be served concurrently to each other.

16. In respect of the overall totality, I will deal with the matter in this way. As I have indicated, the sentences on Charges 1 and8 will be served concurrently to each other. As far as the sentences on Charges 2, 3, 4 and 5 are concerned, as they will be servedconcurrently to each other but 3 months of those sentences will be served consecutively to the other charges, the balance concurrently. Charges 6, 7 and 9, to be served concurrently to each other but 3 months of those sentences will be served consecutively to allother charges, including those of 2, 3, 4, 5, 1 and 8.

17. This gives an overall total of 2 years and 6 months’ imprisonment for this series of offences, and that is the sentence I willimpose.

(T Casewell)
District Judge