HKSAR v. MASRI CANDRA (also known as TRI WAHYU, WAHYU TRI, JONED ASRI AND ASRI JONED)AND ANOTHER

DCCC 674/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 674 OF 2016

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REASONS FOR SENTENCE

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Charge

1.  The 1^st and 2^nd defendants were jointly charged with an offence of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.  The particulars of the offence show that both defendants, on 11 April 2016, outside No 285 Des Voeux Road, Central, Sheung Wan, together with two persons unknown, stole cash of HK$50,000, property belonging to Kuei Lin.  This is Charge 1. 

3.  The 1st defendant was further charged with two offences of breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115.  These are Charges 2 and 3.

4.  Both defendants pleaded guilty to all the charges they face.

Facts: Charge 1

5.  On 11 April 2016 at around 1410 hours, Mr Kuei, aged 66, victim of Charge 1, PW1, withdrew HK$50,000 from a bank in Sheung Wan.  He placed the money into the unzipped right pocket of his jacket.  When he reached the location described in the charge, he was suddenly bumped by a male on his right hand side from the back.  The male walked away without looking back.  When PW1 arrived at the money exchange shop nearby, he found the money in the pocket missing.

6.  On 20 May 2016, both defendants were arrested.  Under caution for loitering offence by PC10513, D1 said, “Sorry, Sir.”  The police officer asked, “Why?” He then replied, “We stole money at a money exchange shop last month in Central.”

7.  On 21 May 2016, D1 admitted, inter alia, in the cautioned video interviews conducted by the police that:-

(a) he went to Hong Kong with D2 and two other persons, namely WP1 and WP2, from Indonesia on 8 April 2016;

(b) on 11 April, around 1410 hours, they were in Sheung Wan and saw an old man with money in his jacket; and

(c) WP1 suggested stealing the money, and arranged the role of each person. WP1 stole the money from PW1 while D1 and WP2 assisted by blocking others’ view. They then fled. WP1 gave him HK$12,000.

8.  In one of the cautioned video-recorded interviews, D2 admitted having come to Hong Kong together with D1 in March or April in 2016.  Having watched D1’s recorded interview alleging that D2 knew the pickpocketing plan prior to the commission of the offence, D2 stated that D1 had told the truth.  D2 further said that WP1, WP2 and D1 followed the victim, but he fell behind.  Later, WP2 gave him $12,000.  It is noted that in a subsequent interview, he said he knew nothing about the pickpocketing plan.

Charges 2 and 3

9.  Fingerprint comparisons revealed that he was the subject of a deportation order issued against him on 5 May 2010.  Travel index check record revealed that he used a passport under the name Masri Candra to enter Hong Kong on 7 April 2016 and departed on 23 April 2016 (2^nd charge) and on 12 May 2016 (3^rd charge) when the deportation order against him was still in force.  Under caution, he admitted using other identities to enter Hong Kong, and he knew he was the subject of the deportation order issued against him on 5 May 2010.

Previous convictions

10.  For D1, he has a total of 11 previous convictions, 10 of which relate to the offence of breach of deportation order, and the remaining one relates to an offence of theft, for which he was sentenced in 2010 to 5 months’ imprisonment.

11.  D2 is of clear record.

12.  Both counsel for D1 and D2 agreed with the contents of the antecedents statements.

Mitigation - D1

13.  Miss Li, counsel for D1, submitted that D1, aged 56 and Indonesian, is married with two adult sons.  He engaged in selling second-hand mobile phones or other things, earning about the equivalent to HK$500 to 1,000 per month.  On the offence date it was WP1 and WP2 who told him that there was money in PW1’s pocket, and WP1 suggested to D1 blocking the views of others whilst he stole the money from PW1.

14.  Miss Li referred this court to HKSAR v Ganbold Munkh Erdene CACC 315/2014 and pointed out that the tariff for pickpocketing offence was 12 to 15 months.

15.  In the present case, D1 acted in concert with others to commit theft, and this was, as she rightly said, an aggravating feature for sentencing purpose.  She then submitted that although D1 committed the pickpocketing offence four days after he arrived in Hong Kong, he came here not to steal.  He was here to buy second-hand mobile phones for sale in his home country.  Besides, there was nothing to suggest the offence location was a busy street as described in the aforesaid authority.

16.  Miss Li emphasised that D1 had, of his own volition, volunteered information to the police.  Had he not made confessions to the 1st offence, he would not have been arrested.  This court should therefore take that into account when sentencing D1.

D2

17.  In both of his written and oral submissions, Mr Sherry, counsel for D2, submitted that D2, aged 36 and Indonesian, is married with two daughters aged 4 and 5.  He worked as a taxi driver and a hawker in his home country.

18.  A letter written by D2 in his language dated 5 June 2016 was read out.  The date of the letter seemed to be wrong, as he mentioned some events after that date.  In any event, he indicated that he intended to plead guilty when he was brought to appear in the Magistrates’ Court in August and in the plea day hearing in the District Court in September last year.

19.  In respect of the starting point for the pickpocketing offence, Mr Sherry referred to HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 and suggested this court adopt a starting point of 12 months.  He described that the pickpocketing offence was just an opportunistic act prompted by WP1 which D2 agreed to follow.  As revealed in the Summary of Facts, it was WP1 who stole the money, and D2 simply followed and fell behind.  Mr Sherry also said that the offence did not take place in a crowded and confined area and D2 was not part of an organised group or ring of thieves.  What he meant was simply that there was no aggravating factor in this case which could justify the court to adopt a higher starting point for sentence.  On the contrary, he emphasised that the court should, apart from giving a one-third discount of sentence for D2’s guilty plea, give further discount because D2 had volunteered information to the police leading to his arrest for the pickpocketing offence.

20.  He relied on HKSAR v Yuen Kwok Kee CACC 336/2005, in particular paragraphs 19 to 21: “that where there was evidence of great remorse on the defendant’s part such as a conscience stricken defendant voluntarily surrendering to the authority or a defendant pleading guilty despite the total lack of evidence against him, a further discount could be given …... such further discount is an exception rather than the rule.”

Reasons for sentence

21.  In passing sentence, I have carefully considered everything said by both counsel and everything written, including the letters of D1 and D2.

Charge 1

22.  Charge 1 is a pickpocketing offence.  The Court of Appeal in HKSAR v Ngo Van Huy had laid down sentencing guidelines for this offence.  The court at paragraph 9 said:

“(2) The guideline sentence of 12 to 15 months after trial is therefore appropriate for a first time offender. This is an immediate custodial sentence, not a suspended one.

(3) Of course, account must be taken for the existence of any aggravating or particular mitigating features before the court.

(4) Aggravating features include:

(c) If the accused commits the offence in conjunction with another, the sentence should be higher.”

23.  In light of the said authority, for Charge 1 I shall adopt a starting point of 12 months’ imprisonment for both defendants.  However, the matter does not stop here.  Obviously there was an aggravating feature in this case.

Aggravating factors (Joint Enterprise)

24.  Both defendants admitted in the Summary of Facts at paragraph 7 that D1, D2, WP1 and WP2 acted as a joint enterprise and stole $50,000 from PW1.  D1 admitted that he knew the pickpocketing plan and he assisted WP1 by blocking the views of others.  The assistance he offered would have facilitated the act of stealing not to be easily detected by the passers-by.

25.  For D2, Mr Sherry said that it was WP1 who stole the money.  D2’s participation was minimal, as he kept a distance from WP1 and simply followed him, and at one stage he fell behind.

26.  Although the act of stealing was committed by WP1, D2, as he had admitted in his cautioned interview, knew the pickpocketing plan, and apparently he agreed to join in, so he followed WP1 and others who were at that time following PW1. After the stealing, he was rewarded $12,000, which was the same amount as that received by D1 and WP2.

27.  I accept that the theft was not committed in a very sophisticated manner.  Still, it was planned and premeditated.  Doubtless to say there was a discussion among the four of them as to from whom to steal, how to steal, what to steal, what role each should play in the theft, and how much each should get.

28.  It was an act of stealing committed by four persons, and two of them are still at large.  This justifies the court to adopt a higher starting point for sentence.  For this I shall adjust the starting point upwards to 18 months’ imprisonment for Charge 1 for both defendants.

29.  There are two things I want to say.  First, I note that both defendants committed the theft offence four days after their arrival in Hong Kong.  There is, however, insufficient evidence to establish that they came here in order to steal, albeit it is reasonable to have such suspicion.  Secondly, the offence seems to have been committed not in a busy street or some well-known places frequented by tourists.  As such, I will not further enhance the starting point.

Mitigating factors (Guilty Pleas)

30.  According to the records, this case was first brought to the District Court on 19 August 2016.  It was adjourned upon an application by the defence.  It was heard again on 2 September 2016 at 11 am for mention.

31.  In this hearing, D1 indicated his guilty pleas to Charges 2 and 3 but not guilty plea to Charge 1.  D2 also indicated his not guilty plea to Charge 1.

32.  A trial date was then fixed.  It was after the fixing of the trial date that this court received a letter from D1’s counsel in November 2016 and another letter from D2’s solicitors in January 2017 that both defendants intended to plead guilty to Charge 1.

33.  Having heard what counsel has said, and bearing in mind that the case was heard on the same day the Court of Appeal had delivered its judgment, HKSAR v Ngo Van Nam CACC 327/2015, and that the defendants had written to this court indicating their pleas of guilty some time ago before the trial, I am prepared to give the defendants the full one-third discount for sentence.

34.  Upon their pleas of guilty to Charge 1, the sentence for each defendant is reduced to 12 months’ imprisonment.

(Voluntary Confessions)

35.  There is another mitigating factor in this case.  Without the voluntary confessions of both defendants, the police would not have been aware of their involvement in the theft offence.  In HKSAR v Hui Chi Tong CACC 14/2007, the Court of Appeal said at paragraph 22:-

“But for the voluntary confession, the applicant would not have been found guilty of the 1st charge. Such voluntary admission, coupled with a plea later, showed genuine remorse. It is in the public interest to encourage an offender to own up to his misdeed and to face the consequence. The most effective way of giving encouragement is to give a greater than normal discount upon a plea. In all the circumstances of this case, we are of the view that a further discount of 2 months is appropriate.”

36.  In this case, for the defendants’ “owning-up” to their offences, I will further reduce the sentence by 2 months.

37.  In respect of Charge 1, D1 and D2, you are each sentenced to 10 months’ imprisonment.

Charges 2 and 3

38.  The travel index check record shows that the defendants came to Hong Kong on 7 April 2016 and 12 May 2016.  It appears that D1 came in and out as freely as he wished by using a passport under the name of Masri Candra, different from the names he had previously used.

39.  I note in the criminal record of D1 that he appealed against the sentences imposed on him in August 2012 in DCCC 578/2012.  In that case, he was charged with 10 breaches of deportation order - that is, 5th to 14th charges - and he received a total of 59 months’ imprisonment for the said charges.  He appealed against that sentence.

40.  The Court of Appeal in HKSAR v Joned Asri, also known as Tri Wahyu, and we now know that he is also known as Masri Candra, CACC 345/2012, adopted a starting point of 42 months in respect of his 9th to 14th charges.  The Court of Appeal also said at paragraph 16:-

“What is not permissible in the case of a repeat or even persistent offender is to keep enhancing the starting point for each repeat offence which is not worst of its kind until one reaches the maximum. This would be wrong in principle because apart from the fact that it is a repeat offence, the nature and criminality of the offence repeated remains the same.”

And in paragraph 19:-

“On the facts of the present case, given the nature and seriousness of the offence and the criminality involved, we take the view that the enhanced starting points ought to have flattened out after the fifth breach - that is, 42 months - which was the enhanced starting point adopted by this court differently constituted in Pham Van Hung in respect of a fifth breach.”

41.  In light of what the Court of Appeal has said in that case, in which D1 was the appellant, I shall adopt a starting point of 42 months’ imprisonment for each of the offences of breach of deportation order.

42.  Upon the guilty pleas, the sentence of Charge 2 is reduced to 28 months’ imprisonment.  Likewise, the sentence of Charge 3 is reduced to 28 months’ imprisonment.

Totality

43.  What remains now is for me to consider the totality principle.  The two offences of breach of deportation order are separate and distinct from the theft offence and for which consecutive sentences are appropriate.  (See HKSAR v Tong Fuk Sing [1999] 3 HKLRD 710 and HKSAR v Wong Ting Wah CACC 153/1997.)

44.  For Charges 2 and 3, given that the breaches were committed almost within a month, I order that the sentences should run concurrently with each other.  However, they should run wholly consecutive to the sentence imposed on Charge 1, making a total of 38 months’ imprisonment.

45.  D1, you are sentenced to 38 months’ imprisonment.

46.  D2, you are sentenced to 10 months’ imprisonment.