HKSAR v. SYAPRIAL AND ANOTHER

DCCC 1090/2017

[2018] HKDC 663

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1090 OF 2017

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Reasons for Sentence

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1.  Both defendants pleaded guilty to the offence of theft of cash $90,000 and they are convicted accordingly.

The Prosecution Case

2.  The facts are straightforward.  Both defendants are Indonesian nationals and entered Hong Kong as visitors on 10 September 2017.  On 12 September 2017, at about 1:30 pm, the 59-year-old victim Mr Lam and his wife went to the branch of the Hang Seng Bank in Yuen Long to cancel his bank account.  The victim put cash of $130,000 into his backpack and the money was composed of one stack of $40,000 and the other two stacks of $45,000.

3.  When the couple were walking along Tai Tong Road and outside a teashop, the two defendants and three others approached and surrounded the victim.  When the victim was about to cross the road, one of the men unknown opened the victim’s backpack and stole two stacks of $45,000 (totalled $90,000) therefrom.

4.  It transpired that the CCTV of the said tea shop captured the stealing act and the scene that both D1 and D2 together with the other culprits were looking at the victim and his backpack shortly before and during the stealing process.  Later, the victim discovered that some of his money was stolen.  Both D1 and D2 were arrested on 18 September 2017.

5.  In the video-recorded interview under caution, D1 made the admissions as follows:

(1) He came to Hong Kong with D2 and two other Indonesians and D1 followed the others to steal;

(2) They came to Hong Kong in pairs;

(3) D1 took part in the stealing of the money and got $10,000;

(4) From a number of screenshots produced from the said CCTV footage, D1 identified the figures in the pictures as himself, D2 and his two other friends.

6.  D2 in his video-recorded interview under caution made the following admissions:

(1) On 12 September 2017 at about 3 pm, D2 was with D1 and two others in Yuen Long;

(2) D2 claimed that he just followed D1 and his friends;

(3) D2 claimed that he had been to the shops near the main road in Yuen Long and he was looking for second hand phones;

(4) D2 identified himself and D1 in the screenshots produced from the said CCTV footage.

7.  The money so stolen from the victim cannot be recovered.

Mitigation

8.  D1 is now aged 44 years old and he is the breadwinner of the family, earning about HK$1,300 per month.  He is married and has three children.  D1 had a clear record in Hong Kong.  He came to Hong Kong with D2 on this occasion.  D1 had come to Hong Kong for a few times looking for jobs.  To this end, the TIC of D1 and D2 was presented and I marked them as MFI-1 and MFI-2 respectively.  It was submitted that when D1 came to Hong Kong, he was approached by two Indonesian people and the latter told him to go to Yuen Long.  It was one of the Indonesian people who stole the money from the victim.  D1 was given HK$10,000 after the theft.  D1 remitted HK$5,000 back home.

9.  D1 did not have a major role in this offence. They did not use any weapons nor cause any threat to the victim.  The area, it was claimed, was not a crowded place.  It was said D1 paid for his flight to Hong Kong himself.  Defence lawyer also submitted a mitigation letter from D1. D1 said he was remorseful and he pleaded guilty to the charge.

10.  D2 is aged 45 years old and has six children, instead of three as mentioned in the antecedents’ statement.  D2 had a clear record in Hong Kong.  It was said D2 came to Hong Kong to buy second hand phones.  He came to Hong Kong in July 2017 on the last occasion and he went to Sham Shui Po area.  D2 came to Hong Kong with D1 as he knew D1 came to Hong Kong more often.

11.  D2 has a minor role in this offence, it was submitted, and he just stood behind and surrounding the victim.  Defence lawyer said it was out of stupidity that D2 joined the other Indonesians.  D2 did not receive any money from others.  D2 said he was remorseful and pleaded guilty to the charge.

12.  Both defendants asked for a lenient sentence.

Sentence

13.  D1 is aged 44 and D2, 45, and they were born in Indonesia.  They completed their junior secondary education in Indonesia.  Both defendants came to Hong Kong as visitors on 10 September 2017 and two days later they committed the present offence with some others.  This was a case of theft by pickpocketing committed by a gang of foreigners.  The culpability of the defendants is based on joint enterprise.  Apparently they had targeted the victim when the latter left the Hang Seng Bank with a relatively large amount of cash.  They committed the offence in a public area when the victim was crossing the road with his attention diverted to traffic on the road.

14.  D1 came to Hong Kong since October 2016 for eight times.  This is his ninth visit.  His stay in Hong Kong was not short (see MFI-1).  D2’s first visit to Hong Kong was in July 2017, staying for more than two weeks.

15.  In the present case, it is clear that both defendants were acting as a kind of lookout and acted to avoid the stealing act being detected or noticed by other passers-by (see MFI-3, copy of photos). These are aggravating features of the present case.

16.  In his mitigation letter, D1 said he apologised for the mistake he made to Hong Kong people and the victim.  D1 asked for a lenient sentence.

17.  The sentencing guideline of pickpocketing can be found in the case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, and also in HKSAR v Kwong Moon Wah & Other, CACC 202/2009 and HKSAR v Pham Bich Thuy [2010] 2 HKLRD 1177.  The appellants in those cases were sentenced to a prison term ranging from 2 years to 2½ years.  I noted that these appellants in those cases had previous conviction records in Hong Kong.  In the present case, both defendants had clear record in Hong Kong.

18.  Taking all factors into account, the fact that the money stolen was never recovered and the sentencing considerations laid down by the Court of Appeal, I would use 2 years as the starting point.  I would give both defendants a full one-third discount in sentence because of their plea.  As such, I sentence both defendants to 16 months’ imprisonment.