HKSAR v. AVILES ZENAIDA SORIANO AND OTHERS

DCCC 591/2018

[2019] HKDC 602

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 591 OF 2018

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REASONS FOR SENTENCE

1.  The defendants stand convicted after trial of one joint charge of attempted theft, contrary to section 9 of the Theft Ordinance[1] and section 159G of the Crimes Ordinance[2].

2.  Full particulars of the offence are set out in my reasons for verdict handed down on 30 April 2019.  In summary the defendants, all visitors from the Philippines, were residing in the same Guest House in Yau Ma Tei.  On the morning of 24 April 2018 PC 14614 first saw D1, D2, D3 and D5 in the Wanchai MTR station paying attention to people going up and down the escalators. 

3.  After leaving the Wanchai MTR station D1, D2, D3 and D5 walked along Hennessy Road towards Gresson Street where they boarded a tram to Central.  On the tram PC 14614 saw D1, D2, D3 and D5 talk to D4.  The five defendants alighted the tram at Bank Street in Central where they separated with D2 and D5 walking to World-Wide Plaza.   

4.  When D2 and D5 walked out from World-Wide Plaza they chatted on the footbridge where they were joined by D1, D3 and D4.  The five defendants then walked to the Central MTR station and purchased tickets in the concourse.  

5.  At this stage PC 14614 handed over the observation to SPC 53491.  When the defendants were about to go down the escalator to platforms 1 and 2, D2 pointed out a Korean couple Ko Yuri and Kim Minchul.  D3 and D4 walked past the Korean couple and stood at the top of the escalator without going down.  When the Korean couple reached the escalator D3 and D4 started to go down followed by the Korean couple, D1, D5 and D2.  While travelling down the escalator D2 and D5 kept looking back. 

6.  When D3 and D4 reached the bottom of the escalator they blocked the way of the Korean couple at which time D1 unzipped Ko Yuri’s backpack and took out a black wallet.  The wallet was attached to the backpack by a strap and therefore could not be removed.  D1 let go of the wallet.  The defendants then boarded a train where they were arrested. 

7.  I was satisfied the only inference to draw was that D1, D2, D3, D4 and D5 were party to a joint enterprise to steal from the young lady Ko Yuri each defendant playing a role in the attempted theft from Ko Yuri. 

Mitigation

8.  In passing sentence, I have carefully considered everything said on behalf of D1 by Mr Raffell, including that D1, who is 60 and has three grown up children in the Philippines, came to Hong Kong primarily to buy goods for sale in her shop in the Philippines.  

9.  I have carefully considered everything said on behalf of D2 by Mr Marray, including that D2, who is 36 and single, first went to Macau to see his girlfriend and then came to Hong Kong to look for an agency for a visa to go to Canada and whilst in Hong Kong bought some bags for his relatives.

10.  I have carefully considered everything said on behalf of D3 by Mr Sherry, including that D3, who is 47 and a widow, came to Hong Kong to buy products from Disneyland for resale in her store in the Philippines.

11.  I have carefully considered everything said on behalf of D4 by Ms Kam, including that D4, who is 29 and has three young children who are looked after by his girlfriend and who he intends to marry, came to Hong Kong to look for an agency to find a better job.

12.  I have carefully considered everything said on behalf of D5 by Mr Tracy, including that D5, who is 60 and a widow suffers from hypertension, high cholesterol and gout, travelled to Macau with her gentleman friend.  When unhappy differences arose over the friend losing a lot of money gambling in the casinos D5 came to Hong Kong on her own waiting to arrange to go back to the Philippines.  

13.  I take into account the clear records of D2, D3, D4 and D5 and that D1 only has one conviction for breach of condition of stay in 1996, over twenty years ago. 

Guidelines

14.  In HKSAR v Ngo Van Huy the Court of Appeal confirmed the guideline sentence for pickpocketing after trial is 12 to 15 months' imprisonment for a first offender, where there are no aggravating features[3]. 

15.  In determining where in the range of 12 to 15 months a sentencing court should commence will depend on the facts of the case including the circumstances of the theft; the value of the property stolen; the age or vulnerability of the victim and the expertise used in the theft.  The sentencing court will however need to avoid double counting by taking into account a matter later considered as an aggravating feature[4]. 

16.  In HKSAR v Ganbold Munkh Erdene & another the Court of Appeal held that an initial starting point of 15 months’ imprisonment was justified where there was a certain level of skill involved in the execution of the offence[5].    Although unsuccessful a degree of skill was involved in the attempt to steal from the backpack of Ko Yuri.  I am satisfied an initial starting point of 15 months’ imprisonment is appropriate.

Aggravating features

17.  Aggravating features include where the offence is committed in a place in which the public is at particular risk, such as crowded places like the MTR and the commission of the offence in conjunction with another[6].

18.  I have also considered the judgment in HKSAR v Banzragch Munkhbaatar, referred to the court by Mr Raffell, in which the court discusses the presence of different aggravating features[7].

19.  In HKSAR v Ngo Van Huy the Court of Appeal said that where the offender is part of an organized and professional ring of thieves a substantial increase in sentence may be called for[8]. The court in giving as an example pickpockets from overseas coming to Hong Kong to carry out this type of activity, referred to the judgment in R v Saldana Alca Jose & another where the Court of Appeal said:

“We take this opportunity to indicate that in our view, because of their seriousness, organised crimes of this nature including group pickpocketing, even without international ramifications, might in future properly attract a starting point of at least 2½ years’ imprisonment.”[9]

20.  A starting point of 30 months’ imprisonment was upheld in HKSAR v Sandagdorj Altankhuyag & another involving two defendants from Mongolia who the court found came to Hong Kong in order to commit crime[10].  Similarly, in HKSAR v Liao Mei[11] a starting point of 30 months’ imprisonment was held appropriate for three defendants who came to Hong Kong and operated as a pickpocket gang on the MTR[12].  

21.  The defendants having arrived in Hong Kong at different times and from different regions of the Philippines counsel submit that the defendants did not come to Hong Kong as part of an organized and professional ring of thieves and that the crime was more of an opportunistic crime. 

22.  In HKSAR v Ganbold Munkh Erdene & another, a case involving two defendants from Mongolia who arrived in Hong Kong three and seven days prior to stealing a wallet from a handbag in Tsim Sha Tsui, the Court of Appeal held that while their recent arrival in Hong Kong was a factor which added colour to their degree of premeditation and planning the evidence fell short of establishing the defendants came to Hong Kong specifically in order to steal.

23.  The court held that an increase of 6 months’ imprisonment from an initial staring point of 15 months’ imprisonment was appropriate.  The court also agreed with the sentencing judge that although the theft took place in a tourist area this was not an aggravating factor because there was little traffic or passing pedestrians at the time[13].

24.  The offence date was the 24 April 2018.  D1 arrived in Hong Kong on 19 April 2018; D2 on 22 April 2018; D3 on 13 April 2018 and D4 and D5 on 20 April 2018.  Apart from D4 and D5 who arrived in Hong Kong on the same day the defendants arrived on different days between two and eleven days prior to the commission of the offence. 

25.  In my view the evidence falls short of establishing the defendants came to Hong Kong specifically in order to steal.  The commission of offences by visitors is nevertheless still an aggravating feature of sentence[14].

26.  I reject the submission this was an opportunistic crime.  The defendants were acting in concert, each playing a role in the attempted theft, which not only suggests a degree of planning and premeditation but was also designed to make it easier for them to avoid detection[15].

27.  Taking into account that the offence took place on the escalator of the Central MTR station which is a place where the public are at risk; the defendants acted in concert with each defendant playing a role in the attempted theft; the defendants are all visitors from the Philippines and apart from D1 having a prior conviction over twenty years ago, all defendants have no previous convictions, I am satisfied an increase of 9 months’ imprisonment to 24 months’ imprisonment is appropriate.

28.  The defendants are convicted and each sentenced to 2 years’ imprisonment.