HKSAR v. MORENO JIMENEZ SALVADOR AND OTHERS

DCCC 1055/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1055 OF 2016

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REASONS FOR SENTENCE

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1.  Each defendant in the present case pleaded guilty to a count of Going equipped for stealing after the prosecution has added 4 alternative charges in the middle of the trial of one count of Conspiracy to steal.

Summary of facts

2.  The 1^st, 3^rd and 4^th defendants are holders of Mexican passports and the 2^nd defendant is a holder of a Republic of Columbia passport.  The 1^st and 4^th defendants arrived in Hong Kong on 8 October 2016 while the 2^nd defendant arrived in Hong Kong on 2 October 2016 and the 3^rd defendant on 4 October 2016.  All of them were admitted to Hong Kong as visitors and were allowed to stay in Hong Kong for three months.  All of them were subsequently stopped and searched inside the Central MTR Station by police on 11 October 2016.  The following items were found on each of the defendants:-

(1) a blunt metal rod about 2 cm in length was found in the 1^st defendant’s cross body bag;

(2) a blue bottle cap with a sharpened metal rod, 2 inches long inserted through a hole in the bottle cap was found inside a backpack carried by the 2^nd defendant;

(3) a white bottle cap with a sharpened metal rod, 1.5 inches long inserted through a hole in the bottle cap was found inside the left front trousers pocket of the 3^rd defendant;

(4) two scriber pens each of 13 cm long and a sharpened metal rod of 4 cm long were found inside a cross body bag carried by the 4^th defendant.

3.  On the day of the arrest, the four defendants were staying in a hotel called Hotel 36 located at Boundary Street, Mongkok.  The 2^nd and 3^rd defendants occupied Room 1202 while the 1^st and 4^th defendants occupied Room 511. 

Background and mitigation

4.  The 1^st defendant is 45 years’ old, a native and citizen of Mexico.  He is single and educated up to primary school.  He was self-employed in his country and selling shoes in Mexico and was earning about US$800 per month. 

5.  The 2^nd defendant is 46 years’ old, divorced with two grown- up daughters in his previous marriage.  He is currently having another relationship, with a daughter of 18 months’ old.  He was educated up to Form 4 and was a driver earning about US$600 to US$700 per month.

6.  The 3^rd defendant is 49 years’ old, divorced with two grown up children in Mexico.  He was a Uber driver in his own country and he also is a trader selling souvenirs.  Before the arrest he was earning about US$1,000 to US$1,500 per month. 

7.  The 4^th defendant is the youngest among all of them.  He is 29 years old, single, educated up to primary school in his country.  He was earning about US$1,000 per month. 

8.  All the defendants have a clear record both in Hong Kong and their own countries.

9.  It was mitigated on behalf of them that a full one‑third discount should be given to them because they did plead guilty at the first opportunity once the alternative count of Going equipped for stealing was added by the prosecutor.  I accept this submission as this paricular situation was not covered in the new sentencing guidelines on discount on plea of guilty set out in case of HKSAR v Ngo Van Nam[1].

10.  Counsel for the defendants also relied on the sentencing principle of this kind of offence set out in the case of Li Ho Yin[2] and urged the court to give the most lenient sentence to defendants so that they can be home as soon as possible.  In the case of Li Ho Yin, it was held by the Court of Appeal that there were no guidelines for sentencing of defendants for the offence of Going equipped for stealing of which the maximum sentence was 3 years’ imprisonment.  However, the courts sought to attain some degree of consistency in sentencing subject to the individual facts of each case including the circumstances in which the defendant was apprehended; the nature of the equipment carried; the nature of the defendant; his record if any; the commissions of other offences at the same time as the subject offence and the principle of totality. 

11.  It was also said on behalf of the defendant that the present offence is said to be a crime of a preventive nature and the present situation was not similar to that in the case of Li Ho Yin where the appellant had advanced well past a merely preparatory or target stage for theft or burglary.

12.  It was also pointed out by Mr Wong for the 3^rd defendant that in the six cases referred to in the case of Li Ho Yin where the starting point ranged from 12 to 18 months, the appellant in those case were either having a number of previous theft or burglary-related criminal records or that they were charged with other offences at the same time which were different from the present scenario.

13.  The counsel for the 1^st and 2^nd defendants submitted the case of Deng Wenxue[3]for the Court.  My attention was drawn to the fact that a starting point of 6 months was said to be appropriate by Deputy Judge Albert Wong, as he then was, in that case where a pair of 25 cm long forceps was concealed in wristlet of the appellant’s forearm. 

Sentence

14.  In the present case, I consider that there are actually two aggravating features on the facts.  First, the defendants were entering Hong Kong as visitors and they committed the present offence only after a few days upon their arrival, and secondly, the circumstances under which they were intercepted were at the Central MTR Station in a weekday’s afternoon when it was expected quite a lot of people would be present there. 

15.  Having considered all the circumstances including the facts of the case and also the background of all the defendants, I am of view that  that a 12 months’ imprisonment is an appropriate starting point.  Given the guilty plea indicated as soon as the charge has been amended, I give each of the defendant a full one-third discount and therefore the 12 months’ imprisonment is reduced to 8 months’ imprisonment.