區域法院（刑事）Deputy District Judge K Lo3/11/2024[2024] HKDC 1866
DCCC283/2024
A A
B B
DCCC 283/2024
C [2024] HKDC 1866 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 283 OF 2024
F F
G --------------------------- G
HKSAR
H H
v
I MYAGMAR OTGONDAVAA I
(also known as BUMBALAI OTGONDAVAA)
J J
----------------------------
K K
Before: Deputy District Judge K Lo
L L
Date: 4 November 2024
M Present: Ms Kitty Tsang, counsel on fiat, for HKSAR M
Mr Michael A Delaney, instructed by Lee Law Firm, assigned
N N
by the Director of Legal Aid, for the defendant
O Offence: [1] & [2] Breach of deportation order（違反遞解離境令） O
P
[3] & [4] Theft（盜竊罪） P
Q Q
-----------------------------------------
R REASONS FOR SENTENCE R
-----------------------------------------
S S
T 1. The defendant is convicted on her own plea and agreement to T
amended Summary of Facts to two counts of breach of deportation order,
U U
V V
-2-
A A
B B
contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115 (1st and
C 2nd charge), and two counts of theft, contrary to section 9 of the Theft C
rd th
Ordinance, Cap 210 (3 and 4 charge).
D D
E Facts E
F F
2. On 21 December 2006, a deportation order was made against
G the defendant under the name of BUMBALAI Otgondavaa (“Deportation G
Order”), requiring her to leave Hong Kong and prohibiting her from being
H H
in Hong Kong at any time thereafter. The Deportation Order was
I personally served on the defendant on 27 December 2006 and she was I
subsequently deported on 28 December 2006.
J J
K 3. The defendant, being a person in respect of whom the K
Deportation Order was still in force and in contravention of the Deportation
L L
Order, on the strength of another Mongolian passport under the name of
M MYAGMAR Otgondavaa entered Hong Kong on 12 May 2023 and left on M
22 May 2023 (1st charge), and entered Hong Kong on 8 June 2023 and
N N
remained here since then (2nd charge).
O O
4. At around 2:30 pm on 13 June 2023, when the defendant
P P
walked out from a Uniqlo store in Cityplaza, she triggered off the store’s
Q anti-theft alarm. Despite the alarm was activated, the defendant still Q
continued to walk away from the store. A staff of the store gave chase
R R
together with her colleague and intercepted the defendant. The case was
S reported. S
T T
U U
V V
-3-
A A
B B
5. Later, a body search was performed by police on the
C defendant. During the search, three jackets, two pairs of trousers and one C
shirt belonging to Uniqlo Hong Kong Limited (“Goods A”), and five shirts
D D
and one pair of trousers belonging to Zara Asia Limited (“Goods B”) were
E found in the defendant’s handbag. The total price of Goods A is $1,644 E
and that of Goods B was $2,274. There was no sales record in respect of
F F
all these items. The defendant was arrested for theft (3rd and 4th Charge).
G G
6. Subsequently, the fingerprint expert found that the
H H
fingerprints of the defendant lifted upon her arrest on 13 June 2023
I matched exactly with those of BUMBALAI Otgondavaa who was the I
subject of the Deportation Order. The identity of the defendant was
J J
confirmed.
K K
Criminal Record
L L
M 7. The defendant has 2 previous criminal records involving M
convictions of 3 charges, one of which is theft and this court was told that
N N
it was a shop theft. The defendant was sentenced to 10 months’
O imprisonment in that case. O
P P
Mitigation
Q Q
8. The defendant is now aged 51. She was born in Mongolia and
R R
was educated up to secondary school level. The defendant is a widow with
S 2 adult children as well as a set of twins, aged 17. She is the sole S
breadwinner of the family. It was said that following an accident in 2007,
T T
the defendant suffered ill health.
U U
V V
-4-
A A
B B
C 9. Defence counsel conceded that breach of deportation order is C
a serious offence and will usually attract a sentence starting point in the
D D
range of 18 to 27 months’ imprisonment (HKSAR v Cortez Emily Bisoy
E [2002] 2 HKLRD 762). E
F F
10. He also conceded that the defendant in repeated breach of
G deportation order calls for an enhancement of sentence. It is said also that G
a higher sentence starting point must be justified by the gravity of the
H H
offence, not merely that it was repeated (HKSAR v Joned Asri, CACC
I 345/2012). I
J J
11. Defence counsel said the defendant breached the deportation
K order twice within a short interval of one month. He said that a sentencing K
starting point should reflect the fact that deportation order was made
L L
18 years ago and not immediately afterwards that the defendant breached
M the deportation order. Furthermore, it is submitted that the defendant is not M
linked to organised crime, nor was it found that she has taken up
N N
unauthorised employment in Hong Kong following the breach of
O deportation order. O
P P
12. Defence counsel submitted that a proper sentencing approach
Q to cases of shop theft was considered comprehensively by Deputy High Q
Court Judge Woo Kwok-hing (as he then was) in HKSAR v Yang Yan Yun
R R
[2014] 1 HKLRD 564, where it was said that:
S S
(a) There is no fixed starting point for shoplifting cases as
T T
the facts vary significantly.
U U
V V
-5-
A A
B B
C (b) Even when the court imposes a deterrent custodial C
sentence on a repeated offender, the starting point
D D
should not exceed 12 months.
E E
(c) The starting point and level of enhancement must be
F F
clearly stated in the reasons for sentence.
G G
(d) For cases involving persistent offender, an
H H
enhancement of sentence generally should not exceed
I one-third of the sentencing starting point. I
J J
13. It was said also that the value of the stolen items is not
K substantial, and that they were returned and no actual loss was caused to K
the owners. It was also said that as the similar conviction of theft was 18
L L
years ago, the defendant should not be considered as a persistent offender.
M M
14. It is said that the defendant is genuinely remorseful for her
N N
conduct. She has pleaded guilty at the earliest opportunity and therefore
O should be entitled to full one-third sentencing discount. O
P P
15. Defence counsel asked this court to adopt a lower sentencing
Q starting point of 18 months for the 1st charge and 2nd charge. It is said also Q
that for the 2nd charge, albeit that it is a repeated breach, any enhancement
R R
to the sentencing starting point ought to be minor. Defence counsel also
S sought for a concurrent sentence for the 2 charges. S
T T
U U
V V
-6-
A A
B B
16. As for the 3rd and 4th charge, defence counsel said that even
C taking into account the defendant’s previous conviction, she is not a C
repeated shoplifter. He urged this court to adopt a sentencing starting point
D D
of no more than 12 months for the 3rd charge and 4th charge. He also
E submitted that the 3rd and 4th charge form part of the same transaction, and E
that the sentence should run totally concurrent to each other. He submitted
F F
that any enhancement for the repeated offence of the 4th charge ought to be
G minor. G
H H
17. Defence counsel also urged this court to consider the totality
I principle and order the sentence for the 1st to 4th charge to run concurrently. I
It was said that there was only a short interval between commissions of the
J J
4 charges, all occurred within 1 month after the defendant’s arrival in Hong
K Kong. He urged this court to treat the defendant with leniency. K
L L
Discussion
M M
18. Before sentencing, this court has carefully considered the
N N
submissions of defence counsel, the authorities cited, and the letter in
O mitigation. O
P P
1st and 2nd Charge
Q Q
19. On conviction upon indictment, a person is liable to
R R
imprisonment for 7 years.
S S
20. Adopting the approach in Joned Asri case, the appropriate
T T
sentencing starting point for the 1 charge is 27 months’ imprisonment.
st
U U
V V
-7-
A A
B B
The defendant has pleaded guilty, she is therefore entitled to full one-third
C sentencing discount. C
D D
21. As said in the cited case of Cortez Emily Bisoy, the offence is
E a serious one and the sentence of 18 months’ imprisonment after plea could E
not be criticised. The defendant is therefore sentenced to 18 months’
F F
imprisonment for the 1st charge.
G G
22. The defendant has shortly after commission of the 1st charge
H H
committed the 2nd charge. This is an aggravating feature in sentencing.
I Sentencing starting point is enhanced by 3 months. Again, she is entitled I
to full one-third sentencing discount by reason of guilty plea. Accordingly,
J J
she is sentenced to 20 months’ imprisonment for the 2nd charge.
K K
3rd and 4th Charge
L L
M 23. On conviction upon indictment, a person is liable to M
imprisonment for 10 years.
N N
O 24. The defendant has one previous similar conviction in the year O
2006 for which she was sentenced to 10 months’ imprisonment.
P P
Q 25. These are shop theft charges. Items stolen were jackets, shirts Q
or trousers, value of stolen goods for the 3rd charge was $1,644 and that for
R R
th
the 4 charge was $2,274.
S S
26. From the very poor quality black and white photos of the 3
T T
stolen jackets, the 3 stolen jackets appear identical. But as this court did
U U
V V
-8-
A A
B B
not have the sight of good quality photos or the actual exhibits, this court
C could not be sure that they are identical jackets, which, if true, would be C
aggravating feature in sentencing. As the matter now stands, for the
D D
purpose of sentencing, the benefit of the doubt would go to the defendant.
E E
27. The defendant committed these offences shortly after she
F F
arrived in Hong Kong in breach of the deportation order. This makes one
G suspicious of whether she came to Hong Kong to commit crime. However, G
in the absence of compelling evidence, the court will again give her the
H H
benefit of the doubt and not sentence her as if she came here for the purpose
I of committing shop theft. I
J J
28. The stolen items were all found in the defendant’s bag at the
K time of interception. They must have been stolen within short intervals K
before the arrest.
L L
M 29. For the 3rd and 4th charge, the court will adopt 9 months’ M
imprisonment as the sentencing starting point.
N N
O 30. Sentence of the defendant is discounted by one-third by O
reason of her guilty plea and her sentence for each of the charges would be
P P
6 months’ imprisonment.
Q Q
Totality
R R
S 31. Considering the totality principle, this court finds that having S
regard to her overall culpability, the sentence of 31 months’ imprisonment
T T
st
is just and proportionate. Accordingly, 3 months of the sentence for the 1
U U
V V
-9-
A A
B B
charge is to run consecutive to the sentence for the 2 nd charge, the rest to
C run concurrently. 2 months of the sentence for the 3 rd charge is to run C
th
consecutive to the sentence for the 4 charge, the rest to run concurrently.
D D
E 32. Commission of the 2nd charge offence obviously add to the E
culpability of the defendant in commission of the 1st charge offence and
F F
likewise, commission of the 4th charge offence adds to the culpability of
G the defendant in commission of the 3rd charge offence. G
H H
33. Sentence for the 1st and 2nd charge and sentence for the 3rd and
I 4th charge are to run totally consecutive to each other. These two sets of I
charges are totally different in nature.
J J
K 34. The defendant is therefore sentenced to a total of 31 months’ K
imprisonment.
L L
M M
N N
( K Lo )
O
Deputy District Judge O
P P
Q Q
R R
S S
T T
U U
V V
DCCC283/2024 HKSAR v. MYAGMAR OTGONDAVAA (also known as BUMBALAI OTGONDAVAA) - LawHero
HKSAR v. MYAGMAR OTGONDAVAA (also known as BUMBALAI OTGONDAVAA)
A A
B B
DCCC 283/2024
C [2024] HKDC 1866 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 283 OF 2024
F F
G --------------------------- G
HKSAR
H H
v
I MYAGMAR OTGONDAVAA I
(also known as BUMBALAI OTGONDAVAA)
J J
----------------------------
K K
Before: Deputy District Judge K Lo
L L
Date: 4 November 2024
M Present: Ms Kitty Tsang, counsel on fiat, for HKSAR M
Mr Michael A Delaney, instructed by Lee Law Firm, assigned
N N
by the Director of Legal Aid, for the defendant
O Offence: [1] & [2] Breach of deportation order（違反遞解離境令） O
P
[3] & [4] Theft（盜竊罪） P
Q Q
-----------------------------------------
R REASONS FOR SENTENCE R
-----------------------------------------
S S
T 1. The defendant is convicted on her own plea and agreement to T
amended Summary of Facts to two counts of breach of deportation order,
U U
V V
-2-
A A
B B
contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115 (1st and
C 2nd charge), and two counts of theft, contrary to section 9 of the Theft C
rd th
Ordinance, Cap 210 (3 and 4 charge).
D D
E Facts E
F F
2. On 21 December 2006, a deportation order was made against
G the defendant under the name of BUMBALAI Otgondavaa (“Deportation G
Order”), requiring her to leave Hong Kong and prohibiting her from being
H H
in Hong Kong at any time thereafter. The Deportation Order was
I personally served on the defendant on 27 December 2006 and she was I
subsequently deported on 28 December 2006.
J J
K 3. The defendant, being a person in respect of whom the K
Deportation Order was still in force and in contravention of the Deportation
L L
Order, on the strength of another Mongolian passport under the name of
M MYAGMAR Otgondavaa entered Hong Kong on 12 May 2023 and left on M
22 May 2023 (1st charge), and entered Hong Kong on 8 June 2023 and
N N
remained here since then (2nd charge).
O O
4. At around 2:30 pm on 13 June 2023, when the defendant
P P
walked out from a Uniqlo store in Cityplaza, she triggered off the store’s
Q anti-theft alarm. Despite the alarm was activated, the defendant still Q
continued to walk away from the store. A staff of the store gave chase
R R
together with her colleague and intercepted the defendant. The case was
S reported. S
T T
U U
V V
-3-
A A
B B
5. Later, a body search was performed by police on the
C defendant. During the search, three jackets, two pairs of trousers and one C
shirt belonging to Uniqlo Hong Kong Limited (“Goods A”), and five shirts
D D
and one pair of trousers belonging to Zara Asia Limited (“Goods B”) were
E found in the defendant’s handbag. The total price of Goods A is $1,644 E
and that of Goods B was $2,274. There was no sales record in respect of
F F
all these items. The defendant was arrested for theft (3rd and 4th Charge).
G G
6. Subsequently, the fingerprint expert found that the
H H
fingerprints of the defendant lifted upon her arrest on 13 June 2023
I matched exactly with those of BUMBALAI Otgondavaa who was the I
subject of the Deportation Order. The identity of the defendant was
J J
confirmed.
K K
Criminal Record
L L
M 7. The defendant has 2 previous criminal records involving M
convictions of 3 charges, one of which is theft and this court was told that
N N
it was a shop theft. The defendant was sentenced to 10 months’
O imprisonment in that case. O
P P
Mitigation
Q Q
8. The defendant is now aged 51. She was born in Mongolia and
R R
was educated up to secondary school level. The defendant is a widow with
S 2 adult children as well as a set of twins, aged 17. She is the sole S
breadwinner of the family. It was said that following an accident in 2007,
T T
the defendant suffered ill health.
U U
V V
-4-
A A
B B
C 9. Defence counsel conceded that breach of deportation order is C
a serious offence and will usually attract a sentence starting point in the
D D
range of 18 to 27 months’ imprisonment (HKSAR v Cortez Emily Bisoy
E [2002] 2 HKLRD 762). E
F F
10. He also conceded that the defendant in repeated breach of
G deportation order calls for an enhancement of sentence. It is said also that G
a higher sentence starting point must be justified by the gravity of the
H H
offence, not merely that it was repeated (HKSAR v Joned Asri, CACC
I 345/2012). I
J J
11. Defence counsel said the defendant breached the deportation
K order twice within a short interval of one month. He said that a sentencing K
starting point should reflect the fact that deportation order was made
L L
18 years ago and not immediately afterwards that the defendant breached
M the deportation order. Furthermore, it is submitted that the defendant is not M
linked to organised crime, nor was it found that she has taken up
N N
unauthorised employment in Hong Kong following the breach of
O deportation order. O
P P
12. Defence counsel submitted that a proper sentencing approach
Q to cases of shop theft was considered comprehensively by Deputy High Q
Court Judge Woo Kwok-hing (as he then was) in HKSAR v Yang Yan Yun
R R
[2014] 1 HKLRD 564, where it was said that:
S S
(a) There is no fixed starting point for shoplifting cases as
T T
the facts vary significantly.
U U
V V
-5-
A A
B B
C (b) Even when the court imposes a deterrent custodial C
sentence on a repeated offender, the starting point
D D
should not exceed 12 months.
E E
(c) The starting point and level of enhancement must be
F F
clearly stated in the reasons for sentence.
G G
(d) For cases involving persistent offender, an
H H
enhancement of sentence generally should not exceed
I one-third of the sentencing starting point. I
J J
13. It was said also that the value of the stolen items is not
K substantial, and that they were returned and no actual loss was caused to K
the owners. It was also said that as the similar conviction of theft was 18
L L
years ago, the defendant should not be considered as a persistent offender.
M M
14. It is said that the defendant is genuinely remorseful for her
N N
conduct. She has pleaded guilty at the earliest opportunity and therefore
O should be entitled to full one-third sentencing discount. O
P P
15. Defence counsel asked this court to adopt a lower sentencing
Q starting point of 18 months for the 1st charge and 2nd charge. It is said also Q
that for the 2nd charge, albeit that it is a repeated breach, any enhancement
R R
to the sentencing starting point ought to be minor. Defence counsel also
S sought for a concurrent sentence for the 2 charges. S
T T
U U
V V
-6-
A A
B B
16. As for the 3rd and 4th charge, defence counsel said that even
C taking into account the defendant’s previous conviction, she is not a C
repeated shoplifter. He urged this court to adopt a sentencing starting point
D D
of no more than 12 months for the 3rd charge and 4th charge. He also
E submitted that the 3rd and 4th charge form part of the same transaction, and E
that the sentence should run totally concurrent to each other. He submitted
F F
that any enhancement for the repeated offence of the 4th charge ought to be
G minor. G
H H
17. Defence counsel also urged this court to consider the totality
I principle and order the sentence for the 1st to 4th charge to run concurrently. I
It was said that there was only a short interval between commissions of the
J J
4 charges, all occurred within 1 month after the defendant’s arrival in Hong
K Kong. He urged this court to treat the defendant with leniency. K
L L
Discussion
M M
18. Before sentencing, this court has carefully considered the
N N
submissions of defence counsel, the authorities cited, and the letter in
O mitigation. O
P P
1st and 2nd Charge
Q Q
19. On conviction upon indictment, a person is liable to
R R
imprisonment for 7 years.
S S
20. Adopting the approach in Joned Asri case, the appropriate
T T
sentencing starting point for the 1 charge is 27 months’ imprisonment.
st
U U
V V
-7-
A A
B B
The defendant has pleaded guilty, she is therefore entitled to full one-third
C sentencing discount. C
D D
21. As said in the cited case of Cortez Emily Bisoy, the offence is
E a serious one and the sentence of 18 months’ imprisonment after plea could E
not be criticised. The defendant is therefore sentenced to 18 months’
F F
imprisonment for the 1st charge.
G G
22. The defendant has shortly after commission of the 1st charge
H H
committed the 2nd charge. This is an aggravating feature in sentencing.
I Sentencing starting point is enhanced by 3 months. Again, she is entitled I
to full one-third sentencing discount by reason of guilty plea. Accordingly,
J J
she is sentenced to 20 months’ imprisonment for the 2nd charge.
K K
3rd and 4th Charge
L L
M 23. On conviction upon indictment, a person is liable to M
imprisonment for 10 years.
N N
O 24. The defendant has one previous similar conviction in the year O
2006 for which she was sentenced to 10 months’ imprisonment.
P P
Q 25. These are shop theft charges. Items stolen were jackets, shirts Q
or trousers, value of stolen goods for the 3rd charge was $1,644 and that for
R R
th
the 4 charge was $2,274.
S S
26. From the very poor quality black and white photos of the 3
T T
stolen jackets, the 3 stolen jackets appear identical. But as this court did
U U
V V
-8-
A A
B B
not have the sight of good quality photos or the actual exhibits, this court
C could not be sure that they are identical jackets, which, if true, would be C
aggravating feature in sentencing. As the matter now stands, for the
D D
purpose of sentencing, the benefit of the doubt would go to the defendant.
E E
27. The defendant committed these offences shortly after she
F F
arrived in Hong Kong in breach of the deportation order. This makes one
G suspicious of whether she came to Hong Kong to commit crime. However, G
in the absence of compelling evidence, the court will again give her the
H H
benefit of the doubt and not sentence her as if she came here for the purpose
I of committing shop theft. I
J J
28. The stolen items were all found in the defendant’s bag at the
K time of interception. They must have been stolen within short intervals K
before the arrest.
L L
M 29. For the 3rd and 4th charge, the court will adopt 9 months’ M
imprisonment as the sentencing starting point.
N N
O 30. Sentence of the defendant is discounted by one-third by O
reason of her guilty plea and her sentence for each of the charges would be
P P
6 months’ imprisonment.
Q Q
Totality
R R
S 31. Considering the totality principle, this court finds that having S
regard to her overall culpability, the sentence of 31 months’ imprisonment
T T
st
is just and proportionate. Accordingly, 3 months of the sentence for the 1
U U
V V
-9-
A A
B B
charge is to run consecutive to the sentence for the 2 nd charge, the rest to
C run concurrently. 2 months of the sentence for the 3 rd charge is to run C
th
consecutive to the sentence for the 4 charge, the rest to run concurrently.
D D
E 32. Commission of the 2nd charge offence obviously add to the E
culpability of the defendant in commission of the 1st charge offence and
F F
likewise, commission of the 4th charge offence adds to the culpability of
G the defendant in commission of the 3rd charge offence. G
H H
33. Sentence for the 1st and 2nd charge and sentence for the 3rd and
I 4th charge are to run totally consecutive to each other. These two sets of I
charges are totally different in nature.
J J
K 34. The defendant is therefore sentenced to a total of 31 months’ K
imprisonment.
L L
M M
N N
( K Lo )
O
Deputy District Judge O
P P
Q Q
R R
S S
T T
U U
V V