HKSAR v. ROMAN ROMAN ROMINA ROXANA AND OTHERS

DCCC 178/2019

[2019] HKDC 921

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 178 OF 2019

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REASONS FOR SENTENCE

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1.  The 1^st, 2^nd and 3^rd defendants pleaded guilty to one charge of “Theft”, contrary to section 9 of the Theft Ordinance, Cap 210.

BRIEF FACTS

2.  At around 7:15 pm on 16 November 2018, PW1 Chan Chung Yin attended a money changer and took from it RMB880,000 (which is equivalent to HK$1 million) and placed it in his backpack.  He then returned to his private car bearing registration number VU5188 which was parked outside No. 488 Shanghai Street, Mongkok, Kowloon and boarded his vehicle.  PW1 placed the backpack in the front passenger seat of his vehicle.

3.  The defendants and the two South American men must have been watching PW1 leaving the money changer and followed him.

4.  One of the South American men intentionally dropped something at the back of PW1’s vehicle and knocked on it to catch his attention.  As this took place, the defendants laid in ambush at the nearside of the vehicle on the pavement.  The two South American men then pointed at various spots on the ground and PW1 alighted the vehicle and started picking up banknotes from the ground.

5.  As PW1 alighted his vehicle, the 3^rd defendant opened the vehicle’s front passenger’s door and took PW1’s backpack, whilst the 1^st defendant stood behind the 3^rd defendant and closed the vehicle’s door after the backpack was taken.  In the meantime, the 2^nd defendant intentionally stood in front of a bystander to block his view on what was happening.

6.  The defendants and the two South American then took off.

7.  PW1 found that his backpack had gone missing and reported the matter to the police.

8.  Camera footage from a medium goods vehicle parked behind PW1’s vehicle was obtained by the police and it captured the incident.

9.  On 19 November 2018, the defendants were seen walking together along Parkes Street.  They were then arrested by the police.  Upon arrest, the 1^st defendant had on her cash ofHK$91,804.00, USD100 and Euro2,450.  The 2^nd defendant had on her cash of HK$116,492.80, USD1,104.00, Pound Sterling 350 and Euro 1.10.  The 3^rd defendant had on her cash of HK$119,153.80 and Australian Dollar 500.

10.  Under caution, the 1^st defendant stated, inter alia:-

- On that day, a fat man named Gerard told them to take a backpack from the Vehicle when they saw it and they did so;

- Her friend, D3, took the backpack and gave it to the fat man and they received a reward of RMB150 from the fat man the following day and she kept RMB50.

11.  Under caution, the 2^nd defendant identified herself from a screen shot taken from the camera footage.

12.  Under caution the 3^rd defendant stated, inter alia:-

- The 1^st defendant, one of the South American and herself met the following day in Jordan and the South American man gave them cash of HK$150,000.00.

13.  The 1^st defendant entered Hong Kong as a visitor on 1 November 2018, whilst the 2^nd and 3^rd defendants entered Hong Kong as visitors on 31 October 2018.

MITIGATION

D1’s mitigation

14.  Mr Hung, representing the 1^st defendant, in his mitigation for his client said that the 1^st defendant entered Hong Kong as a visitor on 1 November 2018 for the purpose of purchasing clothing for her merchandizing business in Chile and as a result, she met some bad people during social occasion and committed the present offence.

15.  The 1^st defendant has two teenage children, a boy and a girl who are presently under the care of her sick mother.  Her younger sister just gave birth to her own child in June and could not render assistance to care for her children and their mother.  Her family is in financial difficulties and both the 1^st defendant’s mother and sister wrote to this court to plea for leniency so she could return home soon to take care of the family.

16.  It is submitted that 1^st defendant also has exhibited symptoms of self-mutilation and mental anxiety and has been prescribed medication for her condition whilst she was in custody at the Correctional Institution.

D2’s mitigation

17.  Mr Gopaoco, representing the 2^nd defendant, in his mitigation for his client said that the 2^nd defendant is now 60 years old.  She is divorced with three adult children and four grandchildren.  The 2^nd defendant owned a small garment and clothing shop in Santiago.  She came to Hong Kong to buy some garments for her business and met some bad people during social occasion and committed the present offence.

18.  Her elder son had a brain surgery in 2015 and would have to undergo a second operation soon.

19.  The 2^nd defendant merely acted as a “lookout” and her role was less culpable than the others involved.  She also wrote a letter to court to show her remorse.

D3’s mitigation

20.  Mr Littlewood, representing the 3^rd defendant submitted that she is a widow with three children, all boys aged 22, 15 and 3 respectively.  Her children are now taken care of by the eldest brother.

21.  Her eldest son mitigated on her behalf and wrote a letter to court to plea for leniency.

SENTENCE

22.  I have grave doubts about all the defendants’ intention to come to Hong Kong for their merchandizing business.  That said, since there is no evidence before me that they came to Hong Kong specifically to commit the present offence, I would not sentence them on this basis.

23.  All the defendants have a clear record in Hong Kong.  However, I would not place any weight on this factor in sentencing.

24.  Mr Hung urged me to adopt a starting point for sentence not higher than 3 years and Mr Littlewood suggested that the present offence was akin to “pickpocketing” case with some aggravating factors.

25.  In HKSAR v Ngo Van Huy [ 2005] 2 HKLRD l, the starting for a first offender for pickpocketing offence is between 12-15 months’ imprisonment. Whilst there are some similar features between the present offence and pickpocketing, it would not be appropriate for me to take reference due to the various aggravating features in this case which should be viewed in a holistic approach.

AGGRAVATING FEATURES – WELL PLANNED AND ORGANIZED

26.  It would be fair to say that the South American men and the defendants did not happen to bump into the victim drawing monies from the money changer and took the opportunity to carry out the theft.  They must have done some recee around the area and picked up the victim in the course.

27.  The South American men played the role of diverting the victim’s attention and the remaining three Defendants, with the 1^st and 2^nd defendants both acting as a look out and the 3^rd defendant carrying out the act of snatching the backpack from the vehicle.  In the present offence, I can see no differentiation in their roles and without each of their participation, the crime might not be smoothly executed.

28.  This is a well-planned and organized theft which is an aggravating feature in this case.

VICTIM’S LOSS SUM AND INTERNATIONAL ELEMENT

29.  The amount stolen is a substantial one, namely RMB880,000, which is equivalent to one million Hong Kong dollars.  At the time of the arrest of the three defendants 2 days later, only approximately one third of the cash equivalent was found on them.

30.  Further, the present offence involved a syndicate from South America which contained an international element.

31.  Having considered all the matters including the aggravating features as aforementioned, I adopted a starting point of 3 years imprisonment for the present offence.  I give the usual one third discount for their guilty pleas making the sentence be one of 24 months imprisonment.

32.  I have considered the defendants’ hardship which they would be facing in serving custodial sentence in Hong Kong and the hardship which their families would face during their incarceration, I therefore give them an additional one month reduction in sentence.  The 1^st, 2^nd and 3^rd defendants will each serve 23 months imprisonment.