HKSAR v. YAHIAOUI HALIM

DCCC 288/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 288 OF 2017

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REASONS FOR SENTENCE

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1.  In this case, the defendant, Mr Yahiaoui Halim, faced one count of theft, contrary to section 9 of the Theft Ordinance, Cap 210. He is convicted upon his plea and admission of facts.

2.  The prosecution’s case is that the defendant had acted in concert with another person (“the Wanted Man”) to steal a quantity of diamonds at an international gem exhibition held in Chek Lap Kok.  The diamonds had been returned after the defendant was arrested but the Wanted Person had made good his escape.

Facts

3.  To simplify matters, I have restructured the Summary of Facts admitted by the defendant in open court and set out only the parts I believe relevant to my decision.

Events on 27 February 2017

4.  At 0349 hours, the defendant and one Mr Masnaoui Fahd, the Wanted Person, both French nationals, entered Hong Kong via the Macau Ferry Terminal.  At 1610 hours of the same day, they booked and checked into the Hong Kong SkyCity Marriott Hotel in Chek Lap Kok (“the hotel”). The hotel is connected to the Asia World Expo by a footpath where the International Diamond, Gem and Pearl Show 2017 (“the gem exhibition”) took place.

Events on 28 February 2017

5.  At 1014 hours, the defendant appeared at the exhibition booth operated by one Fook Diam Limited (“the victim”) of the gem exhibition.  He was wearing a blue surgical mask and a black suit.  He asked to borrow a screwdriver from the victim’s staff.  While the staff was speaking to the defendant outside the booth, the Wanted Person, also wearing a surgical mask, went inside the booth and took away a plastic box containing 15 diamonds (total weight 25.4 carats and valued at about HK$3.26 million).

6.  At 1015 hours, the Wanted Person carrying the stolen jewellery box was seen together with the defendant leaving the booth.  After talking to the defendant, the staff returned to his booth and found the diamonds missing.  He then made a report to the police.  At 1040 hours, the defendant was intercepted by the police inside the exhibition hall.  Afterwards, while investigation was still going on in the booth, the staff suddenly found the missing diamonds on the showcase.

7.  At 1119 hours, the Wanted Person returned to the hotel.  At 1214 hours, the Wanted Person left Hong Kong via Hong Kong International Airport.  Neither the defendant nor the Wanted Person had been invited to attend the gem exhibition.

Findings

8.  From the facts, I am satisfied beyond all reasonable doubt that the defendant acted in concert with the Wanted Person to steal from the victim. The defendant’s role was to divert the attention of the victim’s staff.  After the defendant was intercepted and during the interrogation, for reasons unknown, the Wanted Person decided to return the diamonds.

Discussion

9.  The above facts without more would have led me to believe that this is one of those thefts which target international gems exhibitions that take place regularly in Hong Kong.  Such crimes are usually perpetuated by criminals who came to the territory from a foreign country specifically for this purpose.  Invariably, the offenders would leave as soon as their crime is completed in order to avoid apprehension.  The elaborate planning involved, the substantial value of property and the international element of the crime are the aggravating factors.  Such offences would increase the cost of the operation in trading, discourage foreign traders to do business in Hong Kong and ultimately tarnish Hong Kong’s reputation as an international trade and exhibition centre.

10.  In the case of HKSAR v Padilla Gerardo Gonzaga & Others CACC 275/2011 where a gang of five defendants came to Hong Kong to steal a diamond worth HK$251,682, the Court of Appeal takes the view that the starting point of 3 years adopted by the trial judge had been “unobjectionable” but adds the following observations:-

“22. The court was however entitled – indeed, duty bound – to give effect to features in aggravation of the offence of theft, though without recourse to the Organized and Serious Crimes Ordinance. The aggravating features were the international element and the facts that the offence was planned and committed by several persons.

23. In our judgment, those aggravating features in the context of a public exhibition of expensive jewellery, warranted in each case a sentence, prior to discount for mitigating features, of four years’ imprisonment.”

11.  The Court of Appeal confirmed this stance in the case of HKSAR v Tsogbadrakh Otgon (CACC 393/2013) where a similar theft taking place in the Hong Kong Convention and Exhibition Centre committed by a culprit from Mongolia was charged with and convicted of stealing 10 diamonds.  The Court of Appeal confirmed that 4 years’ imprisonment as a starting point was appropriate in the circumstances.

Other considerations

12.  Mr Morley for the defendant put a different perspective to the present set of facts.  The defendant, a French national aged 36 years, had been a person with an unblemished past both in his country and in Hong Kong.  He had been gainfully employed in a car rental company at the Paris airport.  In his spare time he also took up charity work to help the less unfortunate.  His trip to Asia started with a visit to Thailand.  There he decided to visit a woman whom he met by coming to Hong Kong.

13.  He first landed in Hong Kong on 21 February 2017 before going to Macau.  He came back to Hong Kong in the morning on 27 February 2017 for his flight in the mistaken belief that it was 0035 hours on 28 February 2017, but in fact the flight was to depart in the early hours of the next day on 1 March 2017.  That was why he and his travelling companion, the Wanted Person, decided to check into a hotel near the airport.  Still flushed with the gaiety of the party in Macau the night before, at the suggestion of the Wanted Person, the pair went to the gem exhibition to see if there was anything they could steal. 

14.  Mr Morley suggested the theft was an impulsive, opportunistic crime, and the defendant was not a professional criminal. 

15.  Although I must confess that I have my share of scepticism, everything the defendant said was supported by documents.  The prosecution chose not to take any stand in the issue.  The defendant’s account was not impossible.  I therefore have to give him the benefit of the doubt and find in his favour.

16.  Accordingly, I accept that his visit to Hong Kong was not planned with a view to steal.  It was not a professional job in the sense that he did not come to Hong Kong for the specific purpose of stealing.  Nonetheless, the offence involved an accomplice, a substantial degree of planning (e.g. the role played by the defendant as accomplice, the use of surgical masks to avoid identification etc) and that the amount involved was over $3 million.  These factors certainly have taken the case out of the ordinary shoplifting cases. The locus of the crime, namely, an international exhibition venue for jewellery and gems, is also an aggravating factor.

17.  Having taken all these in considerations, I believe that 3 years’ imprisonment is an appropriate starting point.  I also consider the other parts of the defence submission in his mitigation.  Apart from his plea of guilty, I do not see any other reason which might justify any further exercise of leniency.  Accordingly, I would reduce his sentence to 2 years to reflect his guilty plea.  The defendant is sentenced to 2 years’ imprisonment.