HKSAR v. SERRADJ KAMEL

DCCC 334/2018

[2018] HKDC 1537

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 334 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant is convicted of two charges of attempted theft, contrary to section 9 of the Theft Ordinance, on his own pleas and admission of the facts.

2.  These are what the two charges are about.  On 29 June 2017, and that is the date for the 1st charge, the defendant was seen by a police officer, PC15809, to be wandering around platform number 2 of Tsim Sha Tsui MTR Station at around 7:30 in the evening.  According to the officer, he was looking around nervously and soon jumped into a train heading for Central.  He got off at the Admiralty Station, walked to the opposite platform and then boarded a train heading for Wan Chai.  When the train reached Tin Hau, he alighted and then went to the platform for trains heading for Kennedy Town and boarded one.  He got off at Causeway Bay eventually and then jumped again into another train heading back in the Chai Wan direction.  All along the defendant was seen by the officer to be looking around at people’s properties.

3.  At around 7:55 pm, as the train was travelling from Causeway Bay to Tin Hau, the defendant was seen by another officer, PC14614, who was also keeping observation, to be unbuttoning the rear trousers pocket of a gentleman called Su Shilin.  Mr Su reacted by checking his rear trousers pocket and moving the cash inside into his front trousers pocket.  Then the defendant alighted from the train at Tin Hau.

4.  A few minutes after that, the defendant was intercepted by PC15809 and he was arrested there at the platform by the officer for the offence of attempted theft.  Apparently he was given police bail after the police completed with their investigation either later that day or the day after. That is the facts for the 1st charge.

5.  Insofar as the offence charged under the 2nd charge is concerned, this is what had happened.  Whilst the defendant was still on police bail for the offence under the 1st charge, he was seen again by the police at the MTR Station looking around at properties of other people on 5 November 2017.  On this occasion it was a little past 4 pm on that day.  As the defendant did that, the suspicion of a police officer in the vicinity, PC14508, was aroused and he kept the defendant under observation.

6.  Like what he did for the offence under the 1st charge, the defendant was seen by this officer to be first jumping into a train heading for Tsuen Wan, then he got off at Yau Ma Tei.  When he was standing at the platform in Yau Ma Tei Station, he was seen by the officer to be looking around at other people’s property.  After a while, the defendant was seen to be walking to platform number 2 and boarded the train to Central there.  When the train arrived at the Tsim Sha Tsui Station, the defendant got off and sat on a bench at the platform there.

7.  And then at around 4:24 pm that day, the defendant was seen to be following a lady who was called Sukilah to the train heading towards Tsuen Wan.  Whilst inside the train compartment, the said officer saw the defendant unzipping the lady’s handbag and inserting his right hand into it.  When the train reached Jordan, the defendant alighted from the train and soon after he was stopped by another officer, PC47586, who arrested him for the offence of attempted theft.

8.  The defendant was interviewed by the police for these offences on 13 and 14 November 2017.  He denied the allegation under caution and told the police that he is a retiree residing in Chungking Mansion in Tsim Sha Tsui.  Insofar as the offence under the 1st charge is concerned, the defendant said that he was travelling from Wan Chai to Tin Hau by MTR for sightseeing at the time.  As to the second offence, the defendant told the police at the interview that he was waiting inside the Tsim Sha Tsui MTR Station for his female friend who is an Indonesian called Rachall.

9.  Now, two or three other things should also be mentioned.  One, it is accepted by the prosecution that in this case neither of the victims, namely Mr Su insofar as the 1st charge is concerned and Madam Sukilah insofar as the 2nd charge is concerned, have suffered any loss.  The second matter to be noted is that at the time of the two offences the defendant was a holder of a Form 8 recognizance from the Director of Immigration.  A third matter is that insofar as the 2nd charge is concerned, he is, as noted before, on bail.  As admitted in fact by Mr Boyton, who is appearing for him this morning, the defendant having been granted police bail on 29 June 2017 had failed to answer police bail, as he was supposed to, on 24 July.  He was then put on the wanted list by the police and was of course eventually arrested for the second offence.  These matters I shall come back to shortly.

Mitigation

10.  The defendant is 54 years old.  He is an Algerian national.  According to Mr Boyton, he had only finished Primary 3 back in his country.  He has two older brothers and I was told by Mr Boyton that he also has two sons who are now living in France, both adults.  Before coming to Hong Kong in 2016, the defendant was, according to Mr Boyton, a businessman dealing with mobile phones back in Algeria earning about HK$10,000 per month.  The defendant came to Hong Kong legally, according to Mr Boyton, in 2016 and after that applied for non-refoulement.

11.  I was told also by Mr Boyton that the defendant has a clear record in Algeria.  That may or may not be so, but we do know as a fact that after he arrived in Hong Kong he had apparently difficulties in abiding by the law.  In the criminal records put before the court, one could see that in October 2016 he is convicted of one count of theft for which he was sentenced to a 3-month term of imprisonment.  In November 2017, he is convicted of one charge of using a false instrument and two charges of making or causing to be made false or forged statement or representation to an immigration officer. And of course we know from the facts which I have just recited that in between he committed the first offence which was dated 29 June 2017.

12.  I was also told this morning by Mr Boyton that the defendant has a heart fluctuation problem and also suffered from asthma.  However, I was also told that these conditions are not as serious as to warrant the calling by this court of a medical report.

13.  Insofar as the offences are concerned, Mr Boyton contended that both offences, whilst committed at the MTR, were committed at a time just outside what he has called the rush hour.  And it is further said by Mr Boyton that as it was only an attempt in both cases, no property was actually stolen and hence a small discount may well be warranted in both cases.

14.  Having given this points made by Mr Boyton some thought, I am afraid that I am not in a position to accept them.  The Tsim Sha Tsui MTR Station, as everyone in Hong Kong knows, is one of the busiest subway stations in Hong Kong.  Whilst 7:30 in the evening may or may not be considered as a part of the rush hour, one may safely assume in my view that the station would still have been quite crowded at that hour.  The same, in my view, also applies to a train which was leaving for Tsuen Wan at about 4:30 in the afternoon.  In both cases, clearly the offences were committed at a place frequented by the public.

Sentencing consideration

15.  As pointed out by me to Mr Boyton earlier, there are clearly a few matters which this court is obliged to take into consideration when deciding on the proper starting point to be adopted.

16.  The first matter relates to the fact that the defendant is what can be called a Form 8 recognizance holder.  My attention has been drawn by Miss Chow, who is appearing for the prosecution, to the case of HKSAR v Shah Arif, CACC 298/2015.  I have also, when considering this matter, come across a more recent case, HKSAR v Ali Saif, CACC 309/2017.  In that case the applicant was also an asylum seeker.  He was convicted at the High Court of trafficking in dangerous drugs.  In sentencing the trial judge enhanced the starting point by 1 year to take into account the defendant’s status.  On appeal, the Court of Appeal considered the enhancement to be perfectly proper. As observed by Macrae JA who gave the judgment for the court, and I quote:-

“We should say that we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or the High Court. If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants.”

And his Lordship continued on to say this:-

“Furthermore, Form 8 recognizance holders, whose non-refoulement applications may take several years to deal with, must be firmly discouraged from becoming involved in serious crimes whilst their applications are being processed.”

The observation made by his Lordship in Ali Saif clearly applies also to the present case.

17.  As one can see from the case of HKSAR v Sandagdorj Altankhuyag [2014] 1 HKC 206 - a second matter which this court has to take into account is the fact that the defendant is clearly a repeat offender, certainly so insofar as the second charge is concerned.  As observed by the Court of Appeal in the case of HKSAR v Ganbold Chinzorig, HCMA 126/2016, the usual starting point of 12 months, which may well be a suitable starting point for a first offender, could be enhanced to a term of 21 months because the defendant was a repeat offender.  And that of course is only part of the consideration, the other part being the fact that the defendant actually committed the offence under the 2nd charge whilst he was on bail for the 1st charge.  An act like that has been described by the Court of Appeal in the case of HKSAR v Leung Ting Fung & Another reported in [2015] 1 HKC 290 as to demonstrate persistent offending. And in the case of Secretary for Justice v Rashid Mahmood [2012] 3 HKC 138, it had been said that to commit another offence whilst on bail is equal to a total disregard of the law; and for that the sentencing court may order a second term of sentence for the second offence to run completely consecutively to the first one.

18.  Having taken all these matters into account, I am of the view that for the 1st charge a basic starting point of 15 months’ imprisonment is the lowest one could give.  For the 2nd charge, a basic starting point of 18 months would have been reasonable in the circumstances.  For the fact that the two offences were committed whilst he is on recognizance from the Director of Immigration, I shall add 3 months to each of the two terms.  That will result in a starting point of 18 months’ imprisonment for the 1st charge and a starting point of 21 months for the 2nd.  For his timely guilty plea, he will of course be entitled to the one-third discount.  That will reduce the sentence for the 1st charge from 18 months to 12 months and for the 2nd charge from 21 months, I think, to 14 months.

19.  There is of course the question of totality which I have to consider.  But at the same time there is also the question of the defendant committing the 2nd charge whilst he is on bail for the offence under the 1st charge which I will also have to take into account.  Putting both of these matters on the scale, I shall order 7 months out of the 14 months’ term for the 2nd charge to be served concurrently with the 12 months’ term for the 1st charge.  That will make, I believe, a total term of 19 months.

20.  Stand up please, defendant.  For the reasons I have given just now, you are therefore sentenced to a total term of 19 months’ imprisonment.