HKSAR v. OMRA MODDI

DCCC134/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 134 OF 2015

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Reasons for Sentence

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1. The defendant is a Bangladeshi national. He pleaded guilty to 5 charges.

2. The 1^st and the 2^nd Charges were each for the offence of handling stolen goods[1]. The 3^rd Charge was for the offence of possession of an identity card relating to another person[2]. The 4^th Charge was for the offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong[3]. The 5^th Charge was for the offence of breach of deportation order[4].

Facts

3. Sometime between 6 p.m. on 14 December 2014 and 1:30 p.m. on 16 December 2014, a burglary took place inside a shop selling second-hand watches and jewels in Sham Shui Po.  This shop was owned by Mr. Leung Yu Pui and Mr. Leung Kuen. 

4. Mr. Leung Yu Pui was the last person to leave the shop on 14 December 2014.  He closed the roller shutter and locked it.  The shop was left unattended until Mr. Leung Kuen returned on 16 December 2014.  He found the roller shutter and its lock opened.  There were signs of ransacking inside the shop.  He found 100 second-hand watches with a total value of HK$90,000, 4 bracelets, 3 wrist-laces, and 1 necklace missing from the shop.

5. Around 1 p.m. on 16 December 2014, the defendant visited a shop selling second-hand watches in Yau Ma Tei and offered to sell 12 watches and another 8 watches without watch bands (“the first batch of watches”) to the shop owner Mr. Au Yeung.  Mr. Au Yeung agreed to buy and paid HK$4,700 to the defendant (Charge 1).

6. Around 2 p.m. on 16 December 2014, the defendant spoke to Mr. Au Yeung over the phone and offered to sell more watches.  Mr. Au Yeung asked the defendant to visit his shop again on the following day.

7. Around 1:45 p.m. on 17 December 2014, Mr. Leung Yu Pui spoke to Mr. Au Yeung over the phone.  He informed Mr. Au Yeung of the burglary and losses of his watches. Mr. Au Yeung then invited Mr. Leung to visit his shop to inspect the first batch of watches.  Mr. Leung confirmed that these watches were part of the property found missing from his shop after the burglary.  He made a report to the police.  The police then laid ambush in the vicinity of the shop of Mr. Au Yeung.

8. Around 3:45 p.m. on 17 December 2014, the defendant arrived at the shop of Mr. Au Yeung. He took out a plastic bag containing 21 watches from his rucksack.  A police officer laying ambush nearby immediately intercepted the defendant.  He searched the rucksack of the defendant and found another plastic bag containing 58 watches.  Mr. Leung Yu Pui then inspected these 79 watches (“the second batch of watches”) and confirmed they were also part of the property found missing from his shop after the burglary (Charge 2).

9. Upon further search, a wallet was found on the right rear trousers’ pocket of the defendant.  Inside the wallet, there was an identity card of a person in the name of DAMA Rabinkumar.  The defendant claimed that this identity card belonged to his friend whom could not be located by him.  He had no lawful authority or reasonable excuse to possess this identity card (Charge 3).

10. The defendant was then taken to Yau Mau Tei Police Station.  Inside the police station, the defendant’s passport was examined.  It was found that he last entered mainland China on 3 December 2014.  Upon enquiry, the defendant admitted that he sneaked into Hong Kong from Shenzhen by speedboat on 5 December 2014.  He had remained in Hong Kong since then without the authority of the Director of Immigration until the time of his arrest (Charge 4).

11. Upon fingerprint examination, the Immigration Department confirmed that the defendant had been a subject of a deportation order dated 19 January 2000 which prohibited the defendant to be in Hong Kong at any time thereafter.  The defendant knew that this prohibition order had been made against him because the order was served on him on 11 February 2000, and he had been deported to Dhaka in February 2000, December 2000, August 2005 and December 2012 (Charge 5).

Criminal record

12. The defendant had 5 previous convictions involving 10 immigration offences.  He had been sentenced on 3 occasions for the offence of breach of deportation order in August 2000, September 2004, and May 2009.  He was last sentenced on 21 May 2009 to 8 months’ imprisonment for the offence of making or causing to be made false representation to an immigration officer and to 15 months’ imprisonment for the offence of breach of deportation order.  The two sentences were ordered to run concurrently. 

13. The defendant was released from prison on 5 March 2010 after serving his last sentence.  He then remained in Hong Kong to file a torture claim.  His claim was rejected and he filed an appeal.  He did not attend the appeal hearing and disappeared.  He was eventually arrested and deported to Dhaka in December 2012. 

14. The defendant had no similar convictions for the offences that formed the subject matters of Charges 1 to 4 in the present case.

Personal and family background

15. The defendant is now 41 years old.  He was born in Bangladesh.  He is married.  His wife is 35 years old.  His daughter is one year old.  They are now living in Bangladesh.  The defendant was uneducated.  He was unemployed at the time of his arrest.

Mitigation

16. Mr. Kan, learned solicitor for the defendant, informed me that the defendant did not come to Hong Kong for money but for political asylum.  He said that the defendant had a land property dispute with his elder brother who was affiliated with the government officials in Bangladesh.  The defendant therefore came here and intended to file a torture claim.  Mr. Kan submitted that the defendant was very remorseful for committing these offences, and that his remorse was fully reflected in his guilty pleas.  The defendant had also saved the court’s time and spared the witnesses the trouble of attending court.

17. Mr. Kan made further submissions on what he considered to be the appropriate sentence for each charge.

18. Mr. Kan first of all informed me that the defendant committed the handling offences because he needed some money for his living in Hong Kong while his torture claim was being processed.  Mr. Kan pointed out that the defendant had not committed this type of offence before.  He stressed that the victims did not suffer much loss because 99 of the 100 stolen watches had been recovered, that the watches were not property stolen in a domestic burglary, and that the defendant did not have a sophisticated plan to deal with the stolen goods.  He therefore submitted that there was no factor aggravating the offence.  He cited the case of HKSAR v Xiao Wei [5], and submitted that the proper starting point for each of the 1^st and the 2^nd Charges should be 18 months’ imprisonment, and that the two sentences should run concurrently.

19. In respect of the illegal remaining offence (Charge 4), Mr. Kan pointed out that the usual sentence was 15 months’ imprisonment, and the defendant had not committed this offence before. 

20. In respect of the identity card offence (Charge 3), Mr. Kan cited the case of HKSAR v Tran Viet Thanh, Nguyen Thi Phu & Guan Cuizhen [6] and submitted that mere possession of the identity card did not amount to a factor that would justify a departure from the concurrent sentence approach with the illegal remaining offence.

21. In respect of the breach of deportation order offence (Charge 5), Mr. Kan cited the case of HKSAR v Joned Asri [7] and submitted that since this was the 4^th time the defendant committed this offence, it should attract a sentence of 24 months’ imprisonment.  He further submitted, relying on the case of Nguyen Thi Phu (cited above), that only 4 months of this sentence should run consecutively to the sentences imposed for Charges 3 and 4.

22. Mr. Kan further argued that if this Court was minded to adopted 18 months’ imprisonment as the starting point for Charges 1 and 2, only 4 months or 25% of the sentences of these two charges should run consecutively to the immigration offences.

23. In summary, Mr. Kan submitted that the total term of imprisonment to be served by the defendant should only be 23 months.

Reasons for sentence

24. Despite the defendant’s frank admission to all these charges, it was clear from the nature and the number of the charges, the facts pertaining to each charge as well as the background of the defendant that the only viable sentencing option was imprisonment.  Mr. Kan had never suggested otherwise.  The only questions to be determined were the length of the sentence for each charge, and the length of the overall term of imprisonment to be served by the defendant.

25. I would first of all deal with the sentence to be imposed on each of these charges.

26. In my view, the 1^st Charge and the 2^nd Charge should be dealt with together as far as sentencing was concerned.  It was because just about one hour after the sale of the first batch of watches by the defendant to Mr. Au Yeung, the defendant offered to sell to Mr. Au Yeung further watches, and it was plain and obvious that he was offering to sell the second batch of watches which he took to Mr. Au Yeung’s shop the following day.  It was clear from these facts that these two charges were in fact relating to different parts of the same offence committed by the defendant.  I would therefore impose a global sentence for these two charges and order these two sentences to run concurrently.  In these two offences, the defendant had handled a total of 99 stolen watches.

27. The Court of Appeal had not laid down a sentencing tariff for the offence of handling stolen goods because this offence covered a wide range of criminality.  It had however provided guidance on what sentencing factors should be taken into account.  In R v Bernard Webbe & Others [8], the English Court of Appeal identified 9 factors that might be regarded as aggravating the offence. These 9 factors were:

(1) the closeness of the handler to the primary offence (and closeness might be geographical, arising from presence at or near the primary offence when it was committed, or temporal, where the handler instigated or encouraged the primary offence beforehand, or, soon after, provided a safe haven or route for disposal);

(2) particular seriousness in the primary offence;

(3) high value of the goods to the loser, including sentimental value;

(4) the fact that the goods were the proceeds of a domestic burglary;

(5) sophistication in relation to the handling;

(6) a high level of profit made or expected by the handler;

(7) the provision by the handler of a regular outlet for stolen goods;

(8) threats of violence or abuse of power by the handler over others (for example, an adult commissioning criminal activity by children, or a drug dealer pressurizing addicts to steal in order to pay for their habit); and

(9) commission of an offence while on bail.

28. The English Court of Appeal had also identified factors that might mitigate the offence: (1) the offence was a one-off offence committed by an otherwise honest defendant; (2) little or no benefit to the defendant; and (3) voluntary restitution to the victim.  Personal mitigating factors such as (1) ready co-operation with the police, and (2) timely plea should also be considered.

29. The factors aggravating or mitigating the offence of handling stolen goods as identified in Bernard Webbe had been followed and applied by the Courts in Hong Kong: see Xiao Wei; Secretary for Justice v Cheng Chi Wai [9]. 

30. In my view, 3 of the 9 aggravating factors identified in Bernard Webbe were present in the present case.

31. First, there was no doubt whatsoever that the defendant was closely connected with the primary offence in the sense that he handled the stolen property very soon after the burglary had been committed.  It was not known precisely when the burglary took place.  However, even assuming that it took place immediately after 6 p.m. on 14 December 2014 when the shop was closed, it was less than 44 hours after the burglary had been committed that the defendant sold the first batch of watches and offered to sell the second batch of watches to Mr. Au Yeung, and the time lapse would of course be reduced correspondingly if the burglary took place at a time closer to 1:30 p.m. on 16 December 2014 when the burglary was discovered.  Because of the close proximity in time between these two offences of burglary and handling, the only reasonable and irresistible inference was that the defendant (through purchase or otherwise) obtained the stolen property directly from the actual burglar or his associates, and then handled them with a view of realizing them into money either as an agent for the actual burglar or for the benefit of himself, knowing or believing these watches were stolen property.  From this perspective, the defendant’s culpability in the offence was very close to albeit lower than that of the actual burglar.

32. Second, as to the seriousness of the primary offence, burglary was such a serious offence that the Court of Appeal had made it clear that, save for the most exceptional cases, a sentence of imprisonment had to be imposed to reflect the seriousness of the offence even if the offender was a suitable candidate for probation or community service order: HKSAR v Po Yan Chuen [10], and HKSAR v Wan Ka Kit [11]. For a burglary into non-domestic premises, the Court of Appeal had also laid down the tariff sentence of 30 months’ imprisonment in the absence of any aggravating or mitigating factor: R v Wong Man [12]. 

33. In the present case, if the burglar had been arrested and charged, it appeared that there was no factor that aggravated the sentence.  Even if the roller shutter and its lock were opened, there was no evidence that heavy or large equipment for burglary had been used.  There was no evidence that more than one person were engaged in the burglary.  The value of the stolen property though large but was not so substantial that warranted an upward adjustment of the sentence.  It would therefore mean that the actual burglar of this case would receive a sentence of 30 months’ imprisonment if he were convicted after trial.  For reasons stated earlier, since I was of the view that the defendant’s culpability was not higher than that of the actual burglar, the sentence to be imposed on the defendant in respect of the 1^st and the 2^nd Charges should have a starting point lower than 30 months’ imprisonment.

34. Third, the stolen property handled by the defendant was 99 of the 100 watches stolen from the shop.  Since the 100 stolen watches had a value of HK$90,000, the 99 watches handled by the defendant must have a value very close to that figure. Mr. Kan argued that there was little loss to the victims because 99 of the watches were recovered.  However, the watches were recovered because of the assistance rendered by Mr. Au Yeung to the victims, and because the defendant was arrested.  The defendant had never sought to return the property to the victims.  For this reason, there was no reason why the defendant’s culpability in the offences should not be measured in terms of the value of the stolen property, no matter how many of them had been recovered.

35. As to the other aggravating factors identified in Bernard Webbe, I did not find them present in the present case.  The defendant obtained only HK$4,700 for the first batch of 20 watches.  While it was not known how much he would ask for the second batch, it seemed he would not offer to sell them at a particularly substantial price in light of the price at which he sold the first batch.  There was no evidence that he provided a regular outlet for stolen goods.  The way in which he handled the stolen property had no sophistication in it.  He just acted as a roaming salesman.

36. In Xiao Wei, the appellant who was a mainlander coming to Hong Kong on a two way permit pawned a Rolex watch worth HK$11,200 and obtained HK$3,500, and this pawning took place about in less than 6 hours after the watched had been stolen in domestic burglary.  The appellant claimed he had been asked by his friend to pawn the watch and that he was given HK$1,000 as reward.  He was convicted after trial of one charge of handling stolen goods (i.e. the Rolex watch).  The Court of Appeal held that the proper starting point was 18 months’ imprisonment, and enhanced the sentence to 27 months on account of the poor criminal record of the appellant.

37. In the present case, bearing in mind that the defendant had handled 99 stolen watches with a value very close to HK$90,000 which was 8 times the value of the stolen property in Xiao Wei, I adopted 24 months’ imprisonment as the starting point for each of the 1^st and the 2^nd Charge, to run concurrently.

38. It was clear that the only valid mitigating factor was the defendant’s guilty plea for which he would be given the usual one-third discount of the sentences. 

39. I therefore sentenced the defendant to serve a term of 16 months’ imprisonment for each of the 1^st and the 2^nd Charges, and ordered them to run concurrently.

40. In respect of the 3^rd Charge, the defendant entered Hong Kong as an illegal immigrant and remained here after his illegal entry without the authority of the Director of Immigration.  Under these circumstances, the only reasonable and irresistible inference to be drawn was that he possessed an identity card relating to another person in order to facilitate his illegal remaining in Hong Kong.  For this reason, the appropriate sentence to be imposed on the defendant upon his guilty plea was 15 months’ imprisonment: HKSAR v Li Chang Li [13]. There was no other mitigating factor.  He was therefore sentenced to serve a term of 15 months’ imprisonment in respect of this charge.

41. In respect of the 4^th Charge, the usual sentence to be imposed upon guilty plea was 15 months’ imprisonment: R v So Man King [14].  There was no reason to depart from this sentence, and the defendant was sentenced accordingly.

42. In respect of the 5^th Charge, the proper starting point was 27 months’ imprisonment if it was the first offence of this kind committed by the offender: HKSAR v Ta Dinh Son [15]. However, this was the 4^th time the defendant had committed this offence and the starting point should be enhanced accordingly.  In Ta Dinh Son, the appellant had been convicted of the offence of breach of deportation order 7 times.  The Court of Appeal observed that the starting point of 27 month’ imprisonment could be adjusted upwards to 48 months’ imprisonment.  In Joned Asri, the Court of Appeal considered that the appropriate starting point for the 4^th time when the appellant there committed the offence of breach of deportation order (i.e. Charge 8 in that case) should be 36 months’ imprisonment in the circumstances of that case. Having considered these authorities, I adopted 36 months’ imprisonment as the starting point for the 5^th Charge.  The only mitigating factor was the defendant’s guilty plea, and his sentence was reduced by one-third accordingly.  He was therefore sentenced to a term of 24 months’ imprisonment.

43. It was clear from the authorities that the sentences for the 3^rd, the 4^th and the 5^th Charges should run wholly concurrently because the underlying criminality of all these offences was the same, namely, the defendant’s unlawful presence in Hong Kong: see Ta Dinh Son, HKSAR v Bui Van Khai [16], making a total of 24 months’ imprisonment.

44. The next question to consider was whether the sentences for the 1^st and the 2^nd Charges (totalling 16 months’ imprisonment) on the one hand and the sentences for the 3^rd, the 4^th and the 5^th Charges (totalling 18 months’ imprisonment) on the other should run wholly or partially concurrently with or consecutively to one another.

45. Mr. Kan argued that only 4 months of the prison terms imposed for the 1^st and the 2^nd Charges should be ordered to run consecutively to the sentences for the 3^rd, the 4^th and the 5^th Charges.

46. I disagreed with this submission.  Under the principle of totality, while the defendant should not be ordered to serve an overall sentence which was too long, the overall sentence had to at the same time reflect adequately the overall criminalities of all the offences.  It did not mean that whenever a defendant was to be sentenced on a number of charges, some of the sentences had to run wholly or partially concurrently with the others.

47. It was quite clear that the offences that formed the subject matter of the 3^rd, the 4^th and the 5^th Charges were completely different in nature to that in the 1^st and the 2^nd Charges.  The defendant’s culpability in each set of offences was also completely different. Under these circumstances, it would only be right to order the sentences for these two sets of offences to run wholly consecutively to one another.  There were clear authorities supporting this approach: HKSAR v Tong Fuk Sing [17]; HKSAR v Lee Chui Yui [18]; Ta Dinh Son.

48. For these reasons, I sentence the defendant as follows:

Charge 1: 16 months’ imprisonment;

Charge 2: 16 months’ imprisonment;

Charge 3: 15 months’ imprisonment;

Charge 4: 15 months’ imprisonment;

Charge 5: 24 months’ imprisonment.

49. Sentences for the 1^st and the 2^nd Charges are to run concurrently with one another.

50. Sentences for the 3^rd, the 4^th and the 5^th Charges are to run concurrently with one another, but wholly consecutively to the sentences for the 1^st and the 2^nd Charges.

51. In summary, the defendant has to serve a total term of 40 months’ imprisonment.

[1] Contrary to section 24 of the Theft Ordinance, Chapter 210, Laws of Hong Kong.

[2] Contrary to section 7A(1A) of the Registration of Persons Ordinance, Chapter 177, Laws of Hong Kong.

[3] Contrary to section 38(1)(b) of the Immigration Ordinance, Chapter 115, Laws of Hong Kong.

[4] Contrary to section 43(1)(a) of the Immigration Ordinance, Chapter 115, Laws of Hong Kong.

[5] CACC225/2003.

[6] CACC54/2011. CACC221/2011 and HCMA360/2011 (heard together).

[7] CACC345/2012.

[8] [2002] 1 Cr App R (S) 22.

[9] [2012] 4 HKLRD 360.

[10] CACC232/2001.

[11] [2006] 3 HKLRD 9.

[12] [1993] 1 HKC 80.

[13] [2004 – 2005] HKCLRT 187.

[14] [1989] 1 HKLR 142.

[15] CACC348/2013.

[16] CACC175/2012.

[17] CACC216/1999.

[18] CACC24/2014.