HKSAR v. PAVA BERNAL DANIEL AND ANOTHER

DCCC804/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 804 OF 2011

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Reasons for Sentence

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1.  The 1st defendant pleaded guilty to this charge and the 2nd defendant has been convicted after trial. The case concerns, as we know, handling of stolen jewellery, the jewellery being stolen in Taiwan and then a portion of that jewellery being sent to Hong Kong where it was recovered by police. In total, 263 items of jewellery were found in the parcel that I have found both the defendants were involved in handling.

2.  The only issue at large in terms of sentencing is of course the value of the items that were recovered.  I dealt with that during my findings in relation to the case against the 2nd defendant, where I made the observation that some 50 per cent of the goods were subject to a receipt which showed their value at being in the region of $159,000.  There were a further 139 items that were found in the parcel.  They were not covered by receipts and were valued by him at HK$3 million.  I also observed that the 126 other items that were not discovered, were not sent in this parcel, were valued at TWD220,000 and they had more or less the same descriptions. 

3.  It would appear that the valuation attributed to the items that are not receipted in the parcel vastly differ from the valuations of any of the other items stolen from the boot of the car and the attributation of value by the first prosecution witness to those items is his attributation alone.  There is no other evidence to support it and both defendants say that given the disparity in the valuations of these items, there must be some doubt as to their overall valuation and the benefit of that doubt should be given to the defendants.

4.  Now, we know of the 50 per cent of the jewellery that is recovered, the valuation in Hong Kong dollars would be about $50,000, and the question is what overall valuation should be attributed.  I believe it is simply solved by the application of general principles and I consider that in respect of the unreceipted items the evidence upon them cannot prove that value to a criminal standard.  I will have to ascertain some value for the purpose of sentencing but I do not believe that full reliance can be placed on the unsupported valuation.  For my part, I do not believe in a valuation that can be assigned can differ substantially from the valuation that has been attributed to the other items stolen from the jewellery.  It would appear on this basis that the valuation for the purposes of sentencing must be within a range and I would attribute that range as between HK$100,000 and HK$150,000.

5.  I will move on to the general questions of sentencing.

6.  Both the 1st and 2nd defendants are Colombian citizens.  They are both of clear record in Hong Kong.  I have antecedents statements in respect of both of them.  The 1st defendant is aged 46; he has an occupation as a merchant; he has, I am told, two sons and two daughters and he is resident in Bogota.  The 2nd defendant is a younger man, he is aged 39; he was also a merchant; he is married with a son.

7.  Turning to the general question of sentencing, both defendants pray in aid their clear record.  The 1st defendant prays in aid his plea of guilty; he has pleaded guilty at the first opportunity; he has been fully co-operative with the police; that most of the goods have been found to have been recovered; there is no evidence that he received any benefit; and also I read a letter from his wife that shows he has had a difficult situation at home.

8.  As far as the 2nd defendant is concerned, he of course has the benefit of his clear record, and again, the evidence that he has received no clear benefit.

9.  Taking a look at the other factors that I consider with the case, there is no evidence that the defendants themselves were involved in the theft of the items.  The original theft of course has some degree of seriousness in that it involves the theft of items of some value. 

10.  I have to consider whether there is any sophistication in this handling of the goods.  There is a degree of sophistication in that it involves a distancing of the defendants from the movement of the goods and also making apprehension less likely because of the translation between two jurisdictions.

11.  In relation to this offence, I believe I should take a starting point which is common to both defendants then discount the sentence on the 1st defendant by the appropriate one-third that he is entitled to.

12.  Taking into account all these overall considerations, I believe and I find that a starting point for sentence is one of 30 months’ imprisonment. 

13.  The 1st defendant is entitled to a reduction of one-third from that sentence.  His sentence will be one of 20 months’ imprisonment.  The sentence on the 2nd defendant will be one of 30 months’ imprisonment.