HKSAR v. WABHI TRI WAHYU

CACC 345/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 345 OF 2014

(ON APPEAL FROM DCCC NO. 728 OF 2014)

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JUDGMENT
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Introduction

1.On 30 September 2014, the applicant pleaded guilty to the following charges before HH Judge Stanley Chan in the District Court:

(i) Charge 1-

Making a false representation to an Immigration Officer or Immigration Assistant lawfully acting under or in the execution of Part II of the Immigration Ordinance, contrary to section 42(1)(a) of the Immigration Ordinance, Cap 115;

(ii) Charge2-

Theft, contrary to section 9 of the Theft Ordinance, Cap210;

(iii) Charge 3-

Breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115.

2.On the same day, the applicant was sentenced by the judge to a total of 36 months’ (or 3 years’) imprisonment. He now seeks leave to appeal against his sentence.

The facts

3.At about 3:30 pm on 8 July 2014, the victim of Charge 2 withdrew HK$300,000 cash from his Hang Seng bank account and placed the money, which was in envelopes, in his rucksack.

4.About 25 minutes later, when the victim was walking through a subway in Sheung Shui, he felt someone touching his rucksack and turned around to see the applicant’s right hand inside his rucksack. The applicant withdrew his hand and ran away. Two patrolling police officers heard the victim’s cry for help and gave chase to the applicant who subsequently “bumped into” another male who ran off in another direction. The applicant, but not the other male, was finally stopped and arrested by the pursuing police officers. The officers had not lost sight of the applicant throughout the chase. However, $100,000 in an envelope which was found to be missing from the victim’s rucksack was not recovered on the applicant’s person (Charge 2).

5.Upon further investigation, it was revealed that the applicant was subject to a deportation order on 23 February 2012, which prohibited him from being in Hong Kong at any time after the issuance of the order (Charge 3).

6.Moreover, the applicant had also made a false representation to an Immigration Officer or Immigration Assistant lawfully acting under or in the execution of Part II of the Immigration Ordinance that the date of birth stated in the passport which he had used to enter Hong Kong on 30June 2014 was genuine (Charge 1), when in fact it was false.[1]

Mitigation

7.The mitigation advanced before the judge by counsel on the applicant’s behalf was essentially as follows:[2]

(i) The applicant was aged 28 (at the time of sentence) and had a son aged 2. He was unemployed;

(ii) He had come to Hong Kong from Indonesia with a view to getting a job;

(iii) Without the applicant’s admission, there would have been no evidence against him on Charge 1;

(iv) He committed the offence “because of his friend”;

(v) He was remorseful.

8.It was accepted by the applicant’s counsel at trial, however, that there were several aggravating features in the present case, in particular: i) the applicant had a similar conviction for dishonesty; ii) the sum of cash stolen was a large sum, which had not been recovered; and iii)the applicant committed the theft offence whilst under a deportation order.

The judge’s sentencing approach

9.Having considered all the circumstances and the mitigation put forward on behalf of the applicant, the judge identified a number of what he regarded as aggravating features:

i) The applicant had come to Hong Kong using a different name;

ii) He had been deported in February 2012 but returned to Hong Kong in June 2014 with a different passport;

iii) He had come to Hong Kong with the clear intention of committing crime;

iv) He had previous convictions for dishonesty;

v) He had acted together with an accomplice;

vi) They had specifically targeted the victim who had lost a significant amount of money; and

vii) The money was never recovered.

10.In respect of Charge 1, the judge adopted a starting point of 18 months’ imprisonment and reduced it to 12 months for the applicant’s plea of guilty. For Charge 2, having considered HKSAR v Ngo Van Huy [2005] 2 HKLRD1 and HKSAR v Wong Kang Sun [2014] 1 HKLRD 622, the judge adopted 27 months as a starting point, which was then reduced to 18 months’ imprisonment for plea. Regarding Charge 3, the judge adopted a starting point of 27 months and reduced it to 18 months for plea.

11.The sentences on Charges 1 and 3 were ordered to run concurrently with each other, making 18 months’ imprisonment. The sentence on Charge 2 was ordered to run consecutively to the sentences on Charges 1 and 3, thus making an overall sentence of 36 months’ (or 3years’) imprisonment.

Grounds of Appeal

12.In his Notice of application for leave to appeal (Form XI) dated 8 October 2014, the applicant stated that he felt the sentence was “so high for his case”. The applicant has subsequently sent two letters to the Court, dated 13 and 23 March 2015 respectively, which may be summarised as his grounds of appeal as follows:

i) He has shown real remorse throughout;

ii) Given the language barrier, he has suffered particular hardship in prison;

iii) His family has been suffering financial difficulty as a result of his incarceration;

iv) There are three other cases, in which the defendants allegedly convicted of similar charges were sentenced to shorter sentences. All are sentences at first instance:

Name	Charges	Sentence
IRSANDI	1. Attempted theft 2. Breach of deportation order	24 months’ imprisonment
ALDO	1. Theft 2. Breach of deportation order	23 months’ imprisonment
FERDINA DIANATA	1. Theft 2. Breach of deportation order	22 months’ imprisonment

In submissions before me this morning, the applicant has also argued that there should have been a concurrent element as between the sentences on Charges 1 and 3 and the sentence on Charge 2. Since there was no concurrent element, the overall sentence was manifestly excessive and/or wrong in principle.

Consideration

13.Ms Chan Sze-yan, on behalf of the respondent, submits that the sentence adopted by the judge in respect of Charge 1 appears to have been in line with Court of First Instance appellate authority: see HKSAR v Pahila [2007] 1 HKLRD 410 and HKSAR v Ji Guobin (unrep., HCMA243/2014, 30 July 2014). However, I note that McMahon J in the Pahila case, at 411I, considered that “sentences after plea of up to 18months’ imprisonment are justified” for this offence. In my judgment, no complaint can be made of the 12 months’ imprisonment following a plea of guilty imposed on Charge 1.

14.In respect of Charge 2, the judge expressly considered the Court of Appeal authorities in HKSAR v Ngo Van Huy [2005] 2 HKLRD1 and HKSAR v Wong Kang Sun [2014] 1 HKLRD622. In each case, the Court stated that the basic starting point for the offence of “pickpocketing”, before considering aggravating features, should be 12-15 months’ imprisonment. A number of aggravating factors were identified at para 9(4) of Ngo Van Huy, including: the use of a weapon or implement in carrying out the offence; whether the offence was committed in a crowded place; whether the accused committed the offence together with others; and whether the accused was a repeat or persistent offender.

15.In respect of Charge 2 (the theft offence), there were a number of aggravating factors in the circumstances of this particular case (some of which were conceded by the applicant’s own counsel):

i) There was an international element to the offence, the applicant having come to Hong Kong in order to commit crime;

ii) The applicant committed the offence with an accomplice;

iii) The offence involved targeting a particular victim who had just withdrawn a large amount of cash from a bank and then passing it to the accomplice once it had been stolen. It was, therefore, clearly a premeditated theft which was expertly carried out and would have succeeded but for the alertness of the victim and the presence of two police officers in the immediate vicinity;

iv) The amount involved was, in terms of a so-called “pickpocketing” offence, a very large amount, which was never recovered;

v) The applicant had a previous record for a similar offence.

16.In the light of these several factors, and bearing in mind the comments of the Court in HKSAR v Sandagdorj Altankhuyag & another [2014] 1 HKC 206 that a starting point of 2½ years’ imprisonment after trial is not an impenetrable ceiling, the applicant could not have complained if a significantly higher starting point had been adopted by the judge. This was an extremely serious and brazen example of stealing by two men acting in concert from a person in a public place in broad daylight. The starting point ought in my view to have been 3years’ imprisonment for this offence.

17.In respect of Charge 3, the starting point of 27 months’ imprisonment again appears to have been in line with Court of First Instance appellate authority for a first breach of a deportation order: see, for example, HKSARvGabriel, Malou Lantin [2004] HKEC1072 at para3;considered by the Court of Appeal inHKSAR v Ta Dinh Son(unrep.,CACC 348/2013).

18.Accordingly, it seems to me that there can be no complaint about the individual sentences passed on the applicant; indeed, the sentence on Charge 2 was lenient. The only remaining question, therefore, is whether there is a reasonable argument that the overall sentence is manifestly excessive and/or wrong in principle.

19.Given the seriousness which is attached to making false claims to immigration officers, so that it is not entirely clear who is really being admitted to Hong Kong, and to breaching court orders, the judge was right to make the sentences on Charges 1 and 3 and the sentence on Charge 2 run consecutively. I have already stated that the applicant could not have complained if the starting point adopted in respect of Charge 2 had been significantly higher than 27 months’ imprisonment. That being the case, he could also not have complained of a sentence after plea which was greater than 18 months’ imprisonment.

20.Since the sentence on Charge 2 was in my view lenient, any argument (assuming it had merit) that there might have been a concurrent element as between the sentences on Charges 1and 3 on the one hand and Charge 2 on the other is considerably weakened. An appellate court would in any event be looking to see, where there were a number of different offences on which sentences had been passed, whether the overall sentence passed was appropriate or not.

21.In all the circumstances, I do not consider there are reasonable grounds to appeal the overall sentence of 3 years’ imprisonment. Accordingly, leave to appeal against sentence is refused.

22.The applicant is duly advised of his right to renew his application to the Court of Appeal and the consequences of so doing, which may include a direction for loss of time spent in custody pending his appeal, if the Court of Appeal comes to the conclusion that there was no justification for the renewal of the application.

[1] Appeal bundle: pages 3-5

[2] Appeal Bundle: page 9, para’s 8 and 9