HKSAR v. HARI HIDAYAT

 DCCC317/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 317 OF 2010

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Reasons for Sentence

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1.  The defendant pleaded guilty to one each count of theft and of breach of deportation order. Here are the reasons for sentence.

The Prosecution’s Case

2.  On 22 January 2010, the female victim withdrew $40,000 from the Hongkong Bank in Causeway Bay. She put the money and her passbook in a rucksack and went to a branch of the Bank of China situated at Percival Street in Causeway Bay. Inside the lift in the said bank branch, the defendant was seen putting his hand into the victim’s rucksack and taking out the money. The victim was alerted by another person. The defendant attempted to put the money back into the rucksack but failed. The money and the passbook dropped on the floor. The victim immediately picked up the money and her passbook from the floor. The defendant was intercepted. Under caution, the defendant remained silent.

3.  The defendant was found in possession of a passport in the name of Ramdani Badilah bearing his photograph. Subsequent immigration record check confirmed that the defendant was subject to a deportation order against him under the name of Hari Hidayat issued on 18 August 2004. The document was served on the defendant. The traffic index record showed that the defendant entered into Hong Kong under the name of Ramdani Badilah on 19 January 2010.

Mitigation

4.  The defendant is now aged 38 and claimed that he was a car repairer and worked for his parents-in-law. Out of his momentary greed, he committed the present offence. There was no accomplice, no weapon used and no plan at all. The defendant indicated his plea at the earliest opportunity. In 2004, the defendant committed the offence of theft by finding, not pickpocketing. There were no aggravating features in this case. It was said that the defendant flew to Hong Kong from Thailand and then went to China via Lowu. The defendant re-entered Hong Kong via Lowu.

Sentence

5.  This is a pickpocketing case. There is no evidence to suggest that the defendant was a repeated offender in this offence. I have considered the sentencing considerations and the guidelines as expounded by the Court of Appeal in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1. The Court of Appeal took the view that a sentence of 12 to 15 months after trial for the first offender was appropriate. The sentence should be increased if there exists certain aggravating factors. The defendant was deported in August 2004 and, on record, he re-entered Hong Kong on 19 January 2010. Three days later, the defendant committed the present offence in which $40,000 was involved. There was no evidence to show that the defendant tailed the victim from the Hongkong Bank to the branch of BOC. The victim did not suffer any loss.

6.  The defendant has one previous conviction back in 2004. The most important mitigating factor is the defendant’s guilty plea, to which he is entitled to have one-third discount in sentence. Taking all factors into account, in respect of Charge 1, I adopt a starting point of 15 months. Sentence is reduced to 10 months.

7.  As regards the 2nd charge, I considered the case HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762 in which the court held that a sentence of 18 months’ imprisonment after plea for such an offence could not be criticised. There the court went further to say that:

“The legislature intended the offence of breach of a deportation order to be a serious offence and further, a more serious offence than unlawfully remaining in Hong Kong is perhaps evident from the maximum penalty being one of 7 years’ imprisonment as compared to the maximum sentence of 3 years’ imprisonment for unlawfully remaining in Hong Kong.”

8.  In HKSAR v Gabriel Malou Lantin HCMA716 of 2004 where the charges are the same as the present one, the court remarked that:

“The authorities indicate that for a first offence of Breach the Deportation Order, a starting point of 27 months would be appropriate.  As this was a second offence, the magistrate took 30 months as the starting point and reduced it to 20 months for the plea of guilty.”

The court also held that it is a proper principle to follow if consecutive sentence is imposed.

9.  In the present case, the defendant used another name to enter into Hong Kong, and from the way he entered Hong Kong via Lowu, it is apparent that it was his deliberate attempt to circumvent the deportation order. In line with the previous sentencing authorities, I take a starting point of 27 months, and with his plea, the sentence is reduced to 18 months. I have also considered the totality principle and order that 15 months will be served consecutively to the first sentence. Accordingly, the total imprisonment term is 25 months.