HKSAR v. GONGORA CESPEDES ANDRES CAMILO AND OTHERS

DCCC 228/2018

[2018] HKDC 1237

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 228 OF 2018

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REASONS FOR SENTENCE

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1.  D1 has pleaded guilty to Charge 2 to 3, Charge 1 left on court file.

2.  D2 has pleaded guilty to Charge 1, Charge 3 left on court file. 

3.  D3 has pleaded guilty to Charge 2 and 3, Charge 1 left on court file. 

4.  D4 has pleaded guilty to Charge 1, Charge 3 left on court file.

FACTS OF THE CASE

Charge 1 theft, against all defendants.

5.  CCTV of the Baleno shop captured the followings.

6.  On 14 December 2017, the victim Mr Sun, was looking at clothing at the Baleno shop while he left his luggage behind him.  D1 to D4 were lingering around the victim pretending to be looking at clothing and at the same time they were trying get to the luggage, and eventually D4 managed to unzip the luggage and took away HK$20,000 that was inside the luggage.

Charge 2, theft against D1 & D3

7.  On 18 December 2017, the victim Mr Chow, while he was using the toilet on the 1/F of LHT Tower, he put his rucksack next to him, however he later found out his rucksack was missing.

8.  CCTV of the above location captured shortly after the victim went inside the toilet, D3 went inside the toilet followed by D1.  They both started running out of the toilet and D3 had with him the rucksack.

9.  The victim suffered loss of some documents and US$5,000.

Charge 3, conspiracy to steal, against all defendants

10.  On 20 December 2017, the victim Ms Yang, who was a pedestrian carrying a rucksack waiting to cross the road, it was observed by a police officer (PW4) that D3 pointed his finger to D1 and then to the victim.  D1 attempted to unzip the rucksack with his right hand but failed, he tried it for the second time and was able to unzip the rucksack for about 5 inches and slipped his left hand in.  D3 was behind D1 and D2 was to his left.  D4 was standing next to PW4, whom was about 4 meters away observing.

11.  D3 noticed the presence of PW4 and said something to D1 and D1 then retrieved his hand from the rucksack immediately, all defendants tried to flee but were all arrested by police.

MITIGATION & SENTENCE

12.  D1, aged 23 single, a Colombian, came to Hong Kong as a visitor.  D1 committed this offence out of greed.

13.  D2, aged 28, has a girlfriend and a 9 years old daughter and a 8 years old son.  He is also a Colombian and came to Hong Kong as a visitor.

14.  D3, aged 48, a Colombian, he is the father of D1 & came to Hong Kong as a visitor.

15.  D4 aged 49 married with 3 children, a Colombian and he is a friend of D3. For Charge 1 he received $5,000 as reward.  He committed this offence out of financial difficulty. 

16.  They all claimed to be doing business in Hong Kong.

17.  I have considered everything that have been said on their behalf by their lawyers, in particular their timely plea of guilty and the fact that they all have a clear record.

18.  In cases such as Charges 1 and 2, it is akin to pickpocketing, pickpocket sentencing guideline should be followed.  See Ng Ah Shan[1] at para 21 and 33.

19.  As to Charge 3, it is a clear case of pickpocketing, a starting in the region of 12 to 15 months should be adopted.

20.  In passing sentence, I have considered the following factors, whether it was premeditated, the degree of planning, it was more than one person acting in concert.

21.  In Charge 1, D1 to D4 approached the victim in such a way so as to distract him and divert his attention, seizing the right moment when the victim was not looking and unzipped the luggage to steal.

22.  In Charge 2, they followed the victim to the toilet, it must have involved some kind of planning between the 2 defendants.  Otherwise, they would not have ran away together, nor would they have followed the victim together.

23.  In Charge 3, the fact that the 4 of them positioned themselves close to the victim, on the signal given by D3, their target was identified.  D1 then tried to unzip the victim’s rucksack.  It is not hard to imagine the rest of the defendants were either to act as lookout or to receive the stolen property to hide them.  It indicted it was premeditated and planned.

24.  None of the charges could be said to have arisen opportunistically or on the spur of the moment, and involved an element of planning.  It warrants a starting point of 15 months for each charge.  Besides, all charges involved 2 to 4 persons acting in concert.  None of these charges were committed by a single defendant, to reflect this aggravating factor.  Another 3 months should be added on top of the starting point. See Ganbold’s case[2].

25.  In relation to these 3 charges, I accept no weapons and violence were used.  And the fact that D1 to D3 are related.  D4 is a friend of D3.  The 4 of them came from the same country and arrived in Hong Kong some 2 days apart, they landed in Hong Kong.  On 28 & 30 November 2017, 14 days before the offence date in Charge 1.  I am unable to conclude they must have planned to come to Hong Kong to commit crime without further evidence in support.  This represents no further aggravating factor present.

26.  Their personal background and the reason behind for committing those crime.  In my view are not mitigating factor that warrants a deduction of sentence or a lower starting point.

27.  Lastly, solicitor acting for D4 submitted that since D2 does not speak English or Chinese and a foreigner in Hong Kong.  The hardship that D4 faces, should be given consideration, in support of this contention, he cited a case Levy Haim[3]. His Lordship Toh took a lower starting point to reflect this factor.

28.  In all fairness to Mr Moosdeen, he also submitted another authority in which the Court of Appeal observed at para 15:-

“In HKSAR v Hong Chang Chi [2002] 1 HKLRD 486 at paras 17 to 22, it was held that the overseas status of a defendant could not amount to mitigation to any substantial degree and should not be given a specific discount, and that when it comes to importing drugs from other jurisdictions into Hong Kong, public interest demands that a clear message should be sent to foreigners they will be treated no differently if they come here to break the law.”

29.  Despite the abled submission made by Mr Moosdeen.  I accept and am bound by the decision of the Court of Appeal, that said, foreigners will not be treated no differently if they come here to break the law. 

30.  Having considered the above factors and the facts of each Charge, the loss suffered, and the role played by the defendants in each Charge is equally culpable.  I would adopt a starting point of 18 months for all 3 Charges, reduced it by a third, D1 to D4 are therefore sentenced to:-

D1	12 months on Charge 2
	12 months on Charge 3
D2	12 months on Charge 1
D3	12 months on Charge 2
	12 months on Charge 3
D4	12 months on Charge 1

 

31.  Bearing in mind the totality principle, for D1 and D3, 6 months of the prison sentence on Charge 3 will run consecutively to Charge 2, making a total of 18 months’ imprisonment for both defendants.