HKSAR v. CASTRO PADILLA WALDO ANTONIO

DCCC747/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 747 OF 2011

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to two charges before this court. The first charge is of theft, contrary to section 9 of the Theft Ordinance, which is a theft by pick-pocketing. The 2nd charge is that of handling stolen goods, contrary to section 24 of the Theft Ordinance.

2.  The pick-pocketing charge was committed on 28 October 2010 at the Jordan MTR station in Kowloon.  You, together with an unknown person, stole cash of HK$130,000, the property belonging to Benny Hartanto, an Indonesian national. 

3.  In respect of the second offence of handling stolen goods, that was committed on 16 May 2011.  You had in your possession stolen goods, namely one watch and three rings belonging to Mr Lu Chaoping. 

4.  The facts of the case are as follows.  

5.  In the afternoon on 28 October 2010, Mr Hartanto, whom I shall call PW1, an Indonesian visitor to Hong Kong, had exchanged his foreign currency to an amount of HK$250,000 in a money exchange shop in Tsim Sha Tsui.  He then put HK$130,000 cash into the right side pocket of his trousers.  When PW1 left the money exchange, he noticed a male, that is Wanted Person one (WP1), the other person in Charge 1, and you defendant, looking at him suspiciously.  He then walked across Nathan Road and found that you and WP1 were following him.  He went to the bank to do some transactions, then PW1 took a MTR to Mongkok to visit his friend. 

6.  While he was chatting with his friend inside his friend’s shop in Mong Kok, he saw WP1 walking past the shop and looking at him.  Having left the shop, he did some shopping nearby, and when he was at the cashier counter in a fashion shop, he saw you defendant again. 

7.  Defendant, you then walked past PW1 on his right-hand side, and at this juncture, PW1 felt you, defendant, touch his right side pocket with your hand.  PW1 immediately checked his pocket and found nothing missing. 

8.  PW1 then continued shopping to about 9.45 pm.  He then took the MTR from Mong Kok to Jordan.  Upon boarding the train, PW1 spotted you defendant and WP1 again.  Defendant, you were standing beside PW1 on his right-hand side while WP1 was standing nearby. PW1 suddenly felt you had touched his right side pocket again.  He immediately walked away. 

9.  When the train arrived at Jordan MTR station, PW1 got off the train he noticed that you and WP1 followed him.  While PW1 was on an escalator, defendant, you were standing behind him while WP1 was standing beside him.  Suddenly, PW1 felt someone behind him touching his right side pocket again.  When he looked back, he saw you, defendant, going away from his left-hand side at once. 

10.  Having found his money from his pocket was missing, PW1 immediately gave chase and subsequently intercepted you.  WP1 managed to flee in another direction.  PW1 asked you to return the money that you had stolen.  However, you denied stealing the money and allowed PW1 to search you.  As nothing was found from you, PW1 let you go.  PW1 then reported the case to the police.  

11.  Subsequently, some exhibits, including a guidebook, E1, and a magazine, E2, were found at the scene.  Defendant your fingerprints, were found on the guidebook and magazine. 

12.  CCTV systems of the money exchange shop, the China Travel Agency and Baleno fashion shop captured images of you.  The CCTV system of the Jordan MTR station captured PW1 intercepting you. 

13.  In respect of Charge 2, Mr Lu Chaoping is a Mainland businessman.  On 14 May 2011, he visited Hong Kong for shopping.  At about 2.40 pm, he purchased seven watches, four rings and a piece of jade from a jewellery shop.   He then put the purchased items and another ring valued at $58,480 with cash of $170,000 and ¥2,000 Renminbi into his bag. 

14.  PW2 then went to Chun Yuen Seafood Restaurant at No.28 Hankow Road to eat.  Upon arrival, PW2 went to the toilet.  When PW2 had just entered the toilet, a foreign male, Wanted Person 2 (WP2), patted him from behind and pointed at his back.  PW2 then found the back of his clothes were stained.  PW2 therefore put aside his handbag on a nearby table and cleaned his clothes.  At this juncture, another foreign male, Wanted Person 3 (WP3), entered the toilet and took away PW2’s handbag.  PW2 intended to give chase but was blocked by WP2.  PW2 pushed WP2 away and came out of the toilet.  However, he could not locate WP2 nor WP3.  He then made a report to the police. 

15.  On 16 May 2011, defendant, you were arrested by the police in a guesthouse.  Upon searching, cash of $46,000 and the property belonging to Mr Lu, which was a watch and three rings, and two remittance receipts were found inside your room. 

16.  Subsequently, a video-recorded interview was made and you claimed you came to Hong Kong to look for a job.  You admitted having brought US$5,000 with you.  You admitted that you entered Hong Kong on 10 May 2011.  You also admitted having visited Chun Yuen Seafood Restaurant to go to the toilet at about 3.16 pm on 14 May 2011, that is the date of the theft of the handbag from Mr. Lu.  Defendant, you admitted that the watch did not belong to you.

17.  As for the remittance receipts, it is confirmed that you remitted $15,000 and $20,000 back to Chile on 12 May and 14 May 2011 respectively.  

18.  Defendant, you were positively identified by PW1 Mr. Hartanto in an identification parade conducted on 18 May 2011 as the culprit who stole his cash of $130,000 by pick-pocketing him.  PW2 Mr. Lu positively identified the watch and rings found in your possession to be his properties that were stolen from him from the toilet in the Chun Yuen Seafood restaurant.  

19.  Defendant, Mr Nicolas Adams, your counsel, has mitigated fully and thoroughly on your behalf today.  I have taken into account all that he has had said.  He has referred me to the tariff case of Ngo Van Huy CACC107/2004.

20.  Defendant, you are 46 years of age.  At the time of the commission of these offences, you were of clear record.  Since your arrest, however, on 25 August 2011, you were convicted of possession of Part 1 poison and fined $750.  That, Mr Adams tells me, is as a result of one Viagra tablet being found in your bag after your arrest.  I shall in this instance, defendant, treat you as a person of clear record. 

21.  You are a hawker selling clothes in Chile, earning approximately US$500 a month, that amounts to approximately HK$4,000.  You are married and your wife is a housewife and you have five children, aged between 23 and 8 years old. 

22.  You have been to Hong Kong on four previous occasions, but generally those were two different trips to which you had exited Hong Kong on two occasions for a short period and then re-entered Hong Kong so as to renew your visa.  The two main visits to Hong Kong were in October 2010 and May 2011. 

23.  In respect of the first offence, Mr Adams informs me that you gained nothing from that offence.  You were in fact out of pocket.  The other person must have gained every profit from that offence.  You had permitted PW1 to search you as you had nothing with you at all. Mr Adams informs me that WP1 was in fact put on an ID parade but was not identified by PW1, so he had in fact got away scot free and with all the money. 

24.  For the second offence, I am informed by Mr Adams that you in fact had nothing to do with the actual theft.  However, you were approached by a South American in the street and were offered the watch and three rings.  You therefore bought those items for your family and you did not have them to sell on or pass on. 

25.  Mr Adams has submitted that the actual stolen goods found, as can be seen from the tags of the rings, were $6,500 for two rings each, that is $13,000, and the other ring, $7,300, which makes a total value of the rings $20,300.  The watch does not have a tagged value on it, but the prosecution say it is around $3,000.  So the total amount of the stolen goods would be approximately $23,300.

26.  As to the admission that you had made to the police that you were in the seafood restaurant where the theft had taken place from Mr. Lu Mr. Mr. Adams says that that very afternoon, almost approximately around half an hour or so around the time of the offence, you went in there to have a snack and go to the toilet.  Mr Adams submits in his words, “no different from anybody else.”  In mitigation you say that you did not receive any of the money that was stolen from Mr. Lu. 

27.  For the money that you defendant had remitted back to Chile on 12 and 14 May, it is Mr Adams’ submission that that was money which somebody had given you in Chile to purchase telephones, but as you were unable to purchase telephones, you then remitted the money back to Chile to the person involved.  The money in fact, as can be seen from the receipts, was not to any of your family members as clearly those people receiving the money did not have the same surname as yourself. 

28.  Mr Adams has in summary asked the court to take into account your plea of guilty and the fact that you have saved the court time.  The witnesses are clearly persons who are living abroad and have not come to Hong Kong to give evidence.  You have agreed to make restitution in the sum of $46,000 to either both victims or one, this is for the prosecution to decide, but you are agreeable to make nevertheless the full $46,000 restitution.  

29.  Mr Adams has also referred me to authorities from within Archbold in respect of handling stolen goods and the case of R v Webbe at Chapter.22-224 of Archbold for guidelines in sentencing offenders of handling stolen goods.  Relying on the case of Ngo Van Huy, Mr. Adams had originally contended that the starting point for pick pocketing should be in the region of 12-15 months. However I referred him to the fact that there was more than one person involved in this pick pocketing and to the case of Saldana Alca JoseCACC655 of 1996 also referred to in Ngo Van Huy.   

30.  Mr. Adams accepts that there was more than yourself involved in Charge 1.  He submits this cannot be considered a group but perhaps a team.  He has accepted therefore the court may  take a sentence of between 18 months and 2½ years’ imprisonment. 

31.  Defendant, clearly, on the occasion in October 2010, you were a visitor to Hong Kong.  You say you had come to Hong Kong to look for a job in your video-recorded interview and Mr Adams tells me you had come to Hong Kong to buy clothes so that you can hawk them back in Chile.  I find I am unable to accept that that was the sole or main purpose for you to come to Hong Kong. 

32.  The facts, as can be seen in Charge 1, show to me that you had come to Hong Kong, at least on 28 October 2010, to deliberately commit this pick-pocketing crime.  From the facts it can be seen that sometime in the afternoon on 28 October until 9.45 pm, which I would say would be approximately 8 hours or so, you and your accomplice had deliberately followed PW1 from Tsim Sha Tsui to Mong Kok intending to commit this crime.  You stayed in Mong Kok for all those hours while PW1 went shopping, and then followed PW1 back from Mong Kok to Jordan at 9.45 pm where this offence was eventually committed. 

33.  During that time, you had on several occasions touched his pocket and was clearly attempting at those times to steal the cash from his pocket.  Both you and WP1 had stood either next to PW1 or beside him on some of these occasions.  When he was on the escalator in the MTR, you were behind him and eventually managed to steal the cash.  Within seconds the cash had changed hands to WP1.  This clearly shows to me that this was an organised and planned pick-pocketing method and done with some degree of professionalism.   

34.  On those facts, it shows to me that you did not come to Hong Kong purely to find a job or for business.  This was to me, an organised planned operation between yourself and WP1.  You were so confident of your innocence that you in fact, as Mr Adams said, let PW1 search you because by that time you knew the money was not in your possession.  You had skilfully given that money to your accomplice. 

35.  The Court of Appeal has said in the case of Ngo that the starting point for first offenders is between 12 and 18 months’ imprisonment.  However, where there is an aggravating factor, the starting point can be increased.  One of those aggravating factors is where the accused such as yourself commits the offence in conjunction with another.  The Court of Appeal referred to some cases at page 9 of that case, and one of them was R v Saldana Alca Jose and Another, (unreported), CACC655/1996.  In that case, and which the Court of Appeal adopted, the court said that a starting point of at least 2½ years’ imprisonment was appropriate.  In Ngo the court stated, where professional pick-pockets from overseas, whether individually or in a group, come to Hong Kong to carry out this type of activity, an increased sentence can be imposed. 

36.  I am of the view feel that you came from Chile to commit this offence deliberately with another, being a team.  Although I have no evidence that it was in a crowded place at this time in the MTR, but MTRs, generally, in rush hours are crowded.  I will however accept and not take that into account as an aggravating feature.   

37.  In those circumstances, I am of the view that you fall within that bracket of the offence of pick-pocketing with another and I shall take a starting point of 2½ years’ imprisonment. 

38.  For the 2nd charge of handling stolen goods, the original offence is known.  That offence was a theft from Mr. Lu.  Again in my view, a well-organised and planned offence of theft committed by more than one person.  Mr Lu had gone to the toilet and he was told that his clothes were dirty and therefore he put his bag down to clean his clothes.  This was a deliberate ploy for Mr. Lu to put his bag down.  As soon as he put his bag down, his bag was taken away and he was blocked by another person from chasing after him.  He was therefore unable to give chase and the two wanted persons got away.  In that case, again they were foreign males.  It appears those foreign males may well also be of South American nationality, as it is your case that a South American approached you to sell the stolen goods to you.    

39.  I accept that you have pleaded to the offence of handling stolen goods, but it seems to me far too coincidental that you were approached by a South American on the street to ask whether you would like to purchase stolen goods to an offence which have similar facts to the offence of pick-pocketing.  Those being that there were at least two of you involved in the commission of the offence, the offenders were foreigners seemingly from South America targeting victims carrying with them property of some significant value.

40.  It also appeared to me too coincidental that you had been to that very restaurant almost at the same time as the theft offence was committed.  I find the fact that you had gone there just for food and snacks to be highly improbable and that it was not coincidental. Nevertheless, I must take into account you have pleaded guilty and are charged with the offence of handling stolen goods and not theft. 

41.  I have taken note of the factors of sentencing in handling stolen goods and I also consider that a sentence of 2½ years’ imprisonment after trial would be appropriate.

42.  Defendant, these charges are serious and, as I found, are organised and planned offences.  They were committed on two different occasions, some 7 months apart.  On those two occasions when you were in Hong Kong, you committed offences. 

43.  That said, the offences being separate and distinct, I do consider sentences should be partly consecutively, partly concurrent.  I must however look at the principle of totality. In the circumstances, defendant, I consider that a total sentence of 2½ years would be appropriate for both offences.  They should be made up as follows.

44.  Charges 1 and 2, had I convicted you after trial, I would have taken a starting point of 2½ years’ imprisonment.  Giving you full credit for your plea of guilty, those terms would have been reduced to 20 months’ imprisonment on each charge.  I would have ordered 10 months of Charge 2 to run consecutive to that of Charge 1, which would make 30 months, and hence the total term of 2½ years’ imprisonment. 

45.  I must however take into further account the fact that you have agreed to make restitution of $40,000, and on that basis you deserve a further discount to your sentence and therefore your total term, giving that discount, will be one of 2 years and 3 months’ imprisonment, to which you are so sentenced.  That in essence would be that 7 months of charge 2 is to run consecutively to charge 1.