HKSAR v. BAYU RIZKI AMANDA AND OTHERS

DCCC 1159/2024

[2025] HKDC 1280

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1159 OF 2024

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REASONS FOR SENTENCE

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1.  All three defendants pleaded guilty to three joint charges of theft, contrary to section 9 of the Theft Ordinance, Chapter 210 of the Laws of Hong Kong. In addition, the 2^nd defendant pleaded guilty to the 4^th charge of breach of deportation order, contrary to section 43(1)(a)  of the Immigration Ordinance, Chapter 115, of the Laws of Hong Kong.

2.  In fact, all three defendants are Indonesian tourists to Hong Kong. They knew each other before they came.  They came to steal.  A few days after their arrival, they worked together to steal from three victims.

3.  Count 1 is how the defendant stole from a lady who has just cashed a cheque from the bank.  Three defendants were behind her, her rucksack was unzipped.  D3 took the cash, $25,000 therein, while D1 and D2 acted as cover.  This is a pickpocketing case.

4.  Count 2 is a case where another lady was the victim.  She withdrew some cash from a bank.  Later, she placed her handbag on a trolley outside a coffee shop.  D2 came along, telling, distracting her that she has dropped some coins to the floor.  While she was looking down, D1 stole the handbag containing cash $5,500, a Hong Kong ID card, an Octopus card, etc.  This time, D3 acted as a cover.

5.  Count 3 is concerned with the victim who withdrew $10,000 cash from a bank.  He went to a park, sat on the bench, on which he placed his handbag too.  D1 took the $10,000 cash from the handbag while D2 and D3 were acting as lookouts.  They all ran with the money.

6.  Three crimes were committed within five days and all at about noon time.  The total cash involved is some $40,000 which was shared by all three defendants.

7.  In addition, during investigation, it came to light that D2 had changed his name and managed to arrive in Hong Kong in violation of a deportation order. 

8.  D1 is 27 years old.  He is married with two children.  He has no criminal record in Hong Kong.

9.  D2 is 42 years old.  He is married with three kids.  He has four criminal convictions in Hong Kong where two are theft and two are breach of deportation order.  Each time, he was sentenced to prison.

10.  D3 is 48 years old.  He is married with five children.  He has no criminal record in Hong Kong.

11.  All mitigation submissions, including defendants’ medical, personal and family issues are considered, but they do not amount to sentence reducing factors because all the issues were there before they came to Hong Kong.

12.  The case of HKSAR v Tan Hong Sheng, unreported CACC 238/2005 (10 February 2006), is concerned with a pickpocketing gang from the mainland, where the Court of Appeal approved of 30 months’ imprisonment against the clear record culprit on a single charge as a starting point in light of the following aggravating features:

(a)  the offence was committed in a crowded area where the public was at particular risk;

(b)  the offence was carried out by three accused jointly;

(c)  there was a cross-border element as the accused committed the offence the next day after they arrived in Hong Kong from the mainland;

(d)  the offence was organised, well-planned, and professional.

13.  The facts of this case are similar to Tang, but I am not sure of the degree of crowdedness of the crime scene here and if the present crime was as organised and profession as Tang.  Because of this, I adopt a 27 months’ imprisonment as a starting point for Count 1.

14.  Count 2 and Count 3 are akin to pickpocketing, but not exactly as such. Count 2’s handbag was placed on a trolley, a nearby trolley, Count 3’s bag was placed on the bench next to the owner.  I accordingly adopt 24 months’ imprisonment as a starting point for each count.

15.  The deportation charge.  This is the third time the 2^nd defendant violated the order.  The last time he was sentenced to 18 months’ imprisonment in Sha Tin Magistrate Court.  I agree with his counsel that I should adopt a 27 months’ imprisonment starting point.  HKSAR v Pham Van Hung, unreported CACC 14/2011 (12 August 2011).  D2 has previous two theft convictions too. This will be reflected in the totality application.

16.  All three defendants indicated a guilty plea at the first available opportunity and shall be given full one-third discount.

17.  The principle of totality is considered.  To maintain overall fairness and to avoid undue hardship to the defendants, I sentence:

(1)  D1: Count 1, 18 months’ imprisonment; Count 2, 16 months’ imprisonment; Count 3, 16 months’ imprisonment, where 4 months of each of Count 2 and Count 3 are to run consecutive to Count 1, thus making a total of 26 months’ imprisonment. This is the 1^st defendant;

(2)  D2: Count 1, 18 months’ imprisonment; Count 2, 16 months’ imprisonment; Count 3, 16 months’ imprisonment; Count 4, 18 months’ imprisonment, where 4 months each of Count 2 and Count 3 and all 18 months of Count 4 are to run consecutive to Count 1, thus making a total of 44 months’ imprisonment;

(3)  D3: Count 1, 18 months’ imprisonment; Count 2, 16 months’ imprisonment; Count 3, 16 months’ imprisonment, where 4 months each of Count 2 and Count 3 are to run consecutive to Count 1, thus making a total of 26 months’ imprisonment.