HKSAR v. AGUILAR GARCIA MILNER JAVIER

CACC 485/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 485 OF 2012

(ON APPEAL FROM DCCC 863/2012)

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REASONS FOR JUDGMENT

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Hon Lunn JA (giving the judgment of the court):

1. The applicant sought leave to appeal against sentences of imprisonment imposed upon him by District Court Judge Dufton on 8 November 2012, following his pleas of guilty to five charges of theft, contrary to section 9 of the Theft Ordinance, Cap. 210. The total sentence of imprisonment imposed on the applicant was 3 years. The five offences were committed in the nine-day period on and between 4 and 12 July 2012. At the hearing, we granted the applicant leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we allowed the appeal in part with the result that the total sentence of imprisonment imposed on the applicant was 28 months. We said that we would give our reasons for doing so in due course. That we do now.

The sentences

2. The applicant was sentenced to 12 months’ imprisonment in respect of each charge.  6 months of the sentence of imprisonment imposed in respect of charge 2 was ordered to be served consecutively to the sentence imposed in respect of charge 1.  Similarly, 6 months of the sentence of imprisonment imposed in respect of each of the other charges was ordered to be served consecutively to the resulting sentences imposed in respect of the preceding charge.  Accordingly, the total sentence of imprisonment imposed upon the applicant was 3 years.

THE FACTS

3. The applicant was charged jointly with his fellow Peruvian co-accused in each of the charges.  Each of them was a visitor to Hong Kong permitted to stay 30 days only.  The thefts were of bags left unattended by their owners in restaurants or cafes.  In three of the charges the applicant, together with his co-accused, was captured on CCTV as they left the places from which the thefts occurred.  In two of those CCTV films the applicant was seen to be carrying the stolen bag.  An array of property was stolen, including passports, cash, cameras, an I-Pad and a variety of documents of identification and bank cards.  The total value was in excess of $30,000.  Only some of the property was recovered.  The unrecovered property included the passports of two of the victims.

4. The applicant, together with his co-accused, was intercepted by police officers on the fifth floor of Mirador Mansion in the evening of 12 July 2012.  Ten minutes earlier other officers had seen them acting furtively in Nathan Road and had observed the co-accused passing a brown bag to the applicant.  The applicant was found in possession of the brown bag which, together with its contents, was identified subsequently by its owner as having been removed from beneath a chair where he had placed it whilst he was having dinner in a restaurant in Harbour City earlier that evening (Charge 5). The applicant admitted that he had stolen in both Central and Tsim Sha Tsui earlier that day (Charges 4 and 5).  Property stolen in the thefts the subject of charges 1, 2 and 4 was recovered from the applicant’s room in Mirador Mansions and identified by their respective owners.

5. On 13 and 14 July 2012 in five separate video recorded interviews the applicant made admissions of participating in the thefts the subject of all five charges.  Some of the property had been thrown away whilst other items were retained.  He said that he needed money for accommodation and food.

REASONS FOR SENTENCE

6. In his Reasons for Sentence the judge said (paragraphs 11 and 12)

“ Unlike pickpocketing there are no guidelines for this type of theft although they have been said to be similar in nature to the offence of pickpocketing (see for example HKSAR v Cortes Ramon Miguel HCMA 858/ 2011 and HKSAR v Tan Guixiang HCMA 1012/2006).

Sentences of between 9-18 months imprisonment after trial have been said to be appropriate for theft in circumstances similar to the present offences (also see HKSAR v Morales Alva, Adilio Victoriano HCMA 178/2007; HKSAR v Zhou Dingshu HCMA 96/2004 and HKSAR v Rang Zhi-tai & another HCMA 7/1999).”

7. Of the fact that no fewer than five offences had been committed in a short time, the judge said:

“ Whilst each offence taken individually may be classified as an opportune theft, this was a series of thefts committed over a period of 9 days, showing a degree of premeditation on the part of the defendants. The defendants were clearly on the lookout for bags left unattended by their owners. Charges 4 and 5 were committed just over an hour apart on different sides of the harbour.”

8. Noting that the first offence committed by the applicant had taken place 10 days after his arrival in Hong Kong, the judge said that he could not be satisfied that the applicant had come to Hong Kong to steal

9. Of the factors of aggravation in the commission of the offence, the judge said:

“ Albeit in a far more serious case the Court of Appeal said in HKSAR v Obiagwu Oluchukwu Christian CACC 307/2009 that the commission of robbery by visitors to Hong Kong can be regarded as an aggravating feature. I am satisfied this equally applies to the facts of the present case. There is a need to deter tourists who, having come to Hong Kong with insufficient funds or soon after run out of money, think that they can then steal.”

10. The judge went on to say that he drew the friends that the applicant and his co-accused had acted together, the one taking the bag and the other acting as they look as they, “...preyed on victims who were in busy restaurants or shopping centres”.

Starting point

11. The judge stated that he took a starting point for sentence after trial of 18 months’ imprisonment.

Discount

12. For the pleas of guilty of both the applicant and his co-accused, the judge stated that he discounted the sentence taken as the starting point to 12 months’ imprisonment.

Totality

13. In respect of the issue of totality of sentence, the judge said:

“ Although the offences form a series of acts over a relatively short period of time they are nevertheless separate and distinct thefts involving different victims. I am satisfied a total sentence of 3 years imprisonment properly reflects the criminality of the defendants on the five charges.”

14. As noted earlier, the judge achieved that the totality of sentence by making 6 months of each of the charges consecutive to the preceding aggregated sentences.

GROUNDS OF APPEAL AGAINST SENTENCE

15. Mr Victor Lee submitted on behalf of the applicant that the starting point of 18 months’ imprisonment that the judge had taken for each of the five charges was “manifestly excessive and/or wrong in principle”.  He made the same submission in respect of the total sentence of three years’ imprisonment imposed on the applicant.  Next, he contended that the judge had erred in determining that the fact that the applicant was a visitor to Hong Kong was a factor in aggravation of the commission of the offence.  Finally, he said that the judge had erred in finding that whilst one of the two men took the bag the other acted as a lookout.

A CONSIDERATION OF THE SUBMISSIONS

Starting point

16. The judge was entitled to describe the conduct of the applicant and his co-accused as amounting to “preying” on victims who were in busy restaurants or shopping centres.  The array of property stolen on each of the five occasions, as listed in the Particulars of Offence, bears eloquent testimony not only to the actual loss but also as to the consequential anxiety and difficulties caused to the owners of the stolen property.  In three of the thefts no fewer than a total of 12 bank cards were stolen.  Two victims had their Driving licences stolen.  In addition to the stolen passports, one victim had his Hong Kong identity card and his Home Visit Permit stolen. Reports of the loss of those items of property had to be made and arrangements made for their replacement.

17. The judge was correct in determining that there were similarities in the nature of the offences committed by the applicant to offences of pickpocketing.  In the theft the subject of Charge 3, the handbag that was stolen was placed by the victim at the back of his chair.  Others lost bags they had placed on the floor or under a chair.  The victims were clearly in close proximity to the thief when their property was stolen.  It is that factor that gives rise to the similarity with the offence of pickpocketing.

18. The judge was clearly correct in saying that given the fact that the five offences were committed in a nine-day period in establishments of a similar nature that there was a “degree of premeditation”. In that context, and given the fact that two of the offences were committed within hours of one another on 12 July 2012, the judge was entitled to determine that the applicant and his co-defendant “were on the lookout for bags left unattended by the owner”.  Also, it is clear that in selecting relatively crowded places of refreshment as the venues for the thefts the applicant and his co-accused chose places where their victims were likely to be more relaxed and less attentive to the safety and security of their possessions.

19. The fact that the applicant was a visitor to Hong Kong was a factor to which the judge was entitled to have regard, as being in aggravation of the commission of the offence.  However, having accepted that he could not be satisfied that the applicant had come to Hong Kong in order to steal, given that he had been here for 10 days before the first theft, it is clear that the judge discounted that much more serious element of that factor of aggravation.  Nevertheless, the judge was entitled to determine that visitors, like the applicant, who come to Hong Kong but run out of funds are to be deterred from resorting to theft to ameliorate their plight. Of course, assistance for such visitors under distress is available at their national consulates.  Resorting to theft in those circumstances is a gross abuse of the hospitality offered by Hong Kong.

The roles of the applicant and his co-accused

20. It is clear from charges to which the applicant pleaded guilty, and the admissions made by the applicant in his video recorded interviews, that the applicant committed all the offences together with his co-accused.  The thefts were a joint enterprise, in which both men were present at the scene of the crime.  As is apparent from the acceptance of the Summary of Facts by the applicant, the applicant left the premises on which the property the subject of charges1 and 2 was stolen holding that property, whereas in the theft the subject of charge 3 his co-accused held the bag as the two of them left the premises.

21. Whilst it may be the case, as Mr Lee has submitted, that there was no specific evidential basis stipulated in the Summary of Facts for the judge to have determined that whilst one of the men stole a bag, “the other was acting as the lookout”, it was clearly accepted by the applicant that the two men acted together in the commission of each offence.  Obviously, they must have kept an eye on each other as they went about identifying their next victim because, once one of them stole a bag they left the scene of the thefts together.  The gravamen of the judge’s determination was that the offence was the more serious because it was committed by two men acting in combination.  In that respect, the judge was correct that the offence was the more serious as a result.

Totality

22. We accepted Mr Lee’s submission that the judge fell into error in determining the appropriate totality of sentence to impose upon the applicant.  As he suggested, it is be inferred that, in sentencing the applicant to a total of 3 years in prison following his pleas of guilty, the judge would have sentence the applicant 4½ years’ imprisonment after a trial of the five charges.  Viewed from that angle, we are satisfied that the total sentence of 3 years’ imprisonment imposed on the applicant was manifestly excessive.  In our judgment, a total sentence of 28 months’ imprisonment reflected the applicant’s culpability appropriately.

Conclusion

23. Accordingly, we allowed the appeal, in so far as we quashed the orders made by the judge that 6 months of the sentences imposed in respect of charges 2 to 5 be served consecutively to the sentences to be served in respect of other charges.  In their place, we ordered that:

4 months of the sentence of imprisonment imposed in respect of charge 2 be served consecutively to the sentence of 12 months imprisonment imposed in respect of charge 1;

4 months of the sentence of imprisonment imposed in respect of charge 3 be served consecutively to the resulting sentences of imprisonment imposed in respect of charges 1 and 2;

4 months of the sentence of imprisonment imposed in respect of charge 4 be served consecutively to the resulting sentences of imprisonment imposed in respect of charges 1, 2 and 3; and

4 months of the sentence of imprisonment imposed in respect of charge 5 be served consecutively to the resulting sentences of imprisonment imposed in respect of charges 1, 2, 3 and 4.

Accordingly, the total sentence of imprisonment imposed upon the applicant is 28 months.