HKSAR v. INDRA IRAWAN

CACC 80/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 80 OF 2014

(ON APPEAL FROM DCCC NO. 6 OF 2014)

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1.  On 13 February 2014, the applicant pleaded guilty to one charge of theft before His Honour Judge Stanley Chan (“the Judge’) in the District Court and was sentenced to 16 months’ imprisonment. He now applies for leave to appeal against sentence.

The facts

2.  This is a pickpocket case that took place on 19 November 2013 at about 4:35 pm at Castle Peak Road, Yuen Long. 

3.  The facts as admitted by the applicant show that at the material time, PW1 had been to a currency exchange shop to exchange RMB into Hong Kong dollars. He then put HK$10,000 into his shoulder bag.  As he was walking on his own, an unknown male used his right hand to block his way.  When he stepped back, he was blocked by the applicant. He then noticed the unknown male walked past him quickly.  PW1 checked his shoulder bag and found it was unzipped and the $10,000 was missing.  He then saw the applicant walked away quickly.  PW1 gave chase and managed to intercept the applicant.

4.  The applicant was later arrested by the police.  Under caution, he admitted that he and his friend stole the money from PW1.  He claimed he was scared when PW1 discovered the theft and he threw the money away.  PW1’sHK$10,000 was not recovered.

The sentence 

5.  The applicant is an Indonesian national.  He entered Hong Kong as a visitor on 14 November 2013.  He is aged 34, married with two children.  He has no criminal record in Hong Kong.

6.  The applicant was legally represented before the Judge.  In mitigation, it was said that the applicant was the breadwinner of the family and that he earned about HK$2,000 as a fruit hawker in Indonesia.  It was also said that his friend persuaded the applicant to come to Hong Kong to make easy money and that he did not belong to an organized criminal gang.

7.  The Judge considered there was an international element in the case in that the applicant came to Hong Kong to commit offence and also the offence took place on a crowded street.  The Judge noted that while the applicant acted in concert with his friend, but accepted there was no evidence that the applicant was part of an organized and professional ring of thieves.

8.  Having regard to the sentencing guidelines in HKSAR v. Ngo Van Huy [2005] 2 HKLRD 1 and HKSAR v. Sandagdorj Atlankhuyag & Anor [2014] 1 HKC 306, the Judge adopted a starting point of two years. He reduced it by one-third on account of the guilty plea and sentenced the applicant to 16 months’ imprisonment.

Grounds of appeal

9.  The applicant asks for a reduction of the sentence on the ground that the sentence is too severe, that his mother, who is in Indonesia, is suffering from diabetes and that his young children need his support.  He apologizes for committing the offence and promises not to re-offend.

Reasons for decision

10.  In HKSAR v. Ngo Van Huy, the Court of Appeal held that for pickpocket offence, a sentence of 12 to 15 months’ imprisonment would be appropriate for a first time offender after trial.  However, account must be taken of the existence of any aggravating or mitigating factors.  The fact that the offence was committed in crowded places or places in which the public would be at particular risk is an aggravating factor.

11.  In HKSAR v. Sandagdorj Atlankhuyag & Anor, the appellants were Mongolian nationals. They committed pickpocketing in abar at Lan Kwai Fong at 2 am.  The 1^st appellant had just arrived in Hong Kong for six hours whereas the 2^nd appellant was a torture claimant permitted to stay in Hong Kong to await the result of investigation into his claim.  The 2^nd appellant had three criminal records for theft. The trial judge took a starting point of 30 months and reduced it to 20 months in the case of the 1^st appellant on account of his guilty plea.  On appeal, the sentences were upheld.  The Court of Appeal pointed out that the categories of aggravating features were not closed and the fact that the 1^st appellant committed the offence shortly after he entered Hong Kong as a visitor was a serious aggravating factor.

12.  In the present case, as the Judge rightly recognized, there are several aggravating factors. Firstly, the applicant admittedly came to Hong Kong for the purpose of committing crime.  Secondly, he was acting in concert with another person, which suggested a degree of planning and premeditation.  Thirdly, the offence was committed on a busy street.  In the circumstances, the starting point of two years cannot be said to be wrong in principle or excessive.

13.  The one-third reduction for the applicant’s plea of guilty is in line with established law.

14.  The fact that the applicant’s mother is unwell back at home or he has young children to support is not a mitigating factor.  As the Court of Appeal said in HKSAR v. Gurung Hemant (unreported) CACC 332/2005: “We can put it no better than to paraphrase and adapt the words of Nazareth VP in R v. Wong Wai-lun, CACC 512/1996:- those who are concerned about the welfare of their parents or family should avoid getting involved in this sort of offence in the first place.”

15.  There is no arguable ground of appeal.  Accordingly, the application for leave to appeal against sentence is refused.   

(C Chu) Justice of Appeal