HKSAR v. PURNAMA SETIAWAN AND OTHERS

DCCC 711/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 711 OF 2016

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REASONS FOR SENTENCE

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1.  All three defendants pleaded guilty to one joint count of attempted theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charge 1). D2 and D3 also pleaded guilty to one count of breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115 respectively (Charge 2 and Charge 3). Charge 4 against D2 and Charge 5 against D3 were ordered to be kept on court file and not to be proceeded with without the leave of the court.

FACTS

Charge 1

2.  On 3 June 2016, the police saw the three defendants acting suspiciously.  At around 3:46pm on the same day, PC 5317 saw them observing people who were making withdrawals at the counters inside a Hong Kong & Shanghai Banking Corporation situated at 82 Nathan Road, Tsim Sha Tsui, Kowloon (“the Bank”). D1 and D2 split up with D3 and left the Bank, leaving D3 behind.  D1 and D2 then followed closely behind two unknown males (“T1” and “T2”).

3.  At around 3:48 pm, at the pedestrian crossing waiting area at Nathan Road near Humphrey’s Avenue, PC 5317 saw D1, covered by D2, with his left hand supporting a sling bag carried by T2.  D1 also held the zipper of this bag with his right hand trying to unzip it, but was unsuccessful.

4.  D1 and D2 followed T1 and T2 across the road towards Carnarvon Road when the crossing light signal changed to green and continued to follow them closely.  D2 kept looking back in the direction he had come.

5.  At around 3:50 pm, at Humphrey’s Avenue, D3 passed by PC  5317 to catch up and join D1 and D2.  D3 opened up an umbrella whilst they spoke to each other. All three defendants then walked in a line with D1 at the front, D3 in the middle and D2 at the rear.  Each of them was about a body length apart.

6.  Meanwhile, at Nathan Road near Carnarvon Road, WPC 958 saw three defendants standing closely against T2.  D2 held the sling bag carried by T2 with his left hand and made some movement with his right hand.  T2 suddenly pulled his sling bag from his side to his front.  At this stage, all three defendants slowed their pace and talked to each other.  D3 then handed the umbrella to D2.  The three defendants continued to follow T1 and T2 from an approximate distance of 2 metres.  After a short time, D1 looked back talking to D2 and D3.  The three defendants then suddenly walked quickly towards Mody Road.  The police subsequently arrested the defendants.

7.  D3 entered Hong Kong on 29 May 2016.

Charge 2 against D1 and Charge 3 against D2

8.  D1 entered Hong Kong on 29 May 2016 via the Hong Kong International Airport on the strength of an Indonesian passport numbered B0285950 in the name of Purnama Setiawan with a photo of himself.

9.  D2 entered Hong Kong on 1 June 2016 via the Macau Ferry Terminal at 1:37 am on the strength of an Indonesian passport numbered B1543049 in the name of Mahmud Karim with a photo of himself and an indicated date of birth 30 August 1963.

10.  Fingerprints of both D1 and D2 were taken. Forensic examination and comparison of their fingerprints indicated that both defendants were subjects of the Deportation Orders as below:-

(1) a deportation order, which is still in force, was issued against D1 on 22 May 2006 under the name of Andri Mardani, alias Mardani Andri, and stated that D1 was prohibited from being in Hong Kong at any time after the date of issue. He was served with a copy of the said order on 30 May 2006 and deported to Indonesia on the same day;

(2) a deportation order, which is still in force, was issued against D2 on 31 July 2007 under the name of Purba Jaya, alias Jaya Purba, and stated that D2 was prohibited from being in Hong Kong at any time after the date of issue. He was served with a copy of the said order on 7 August 2007 and deported to Indonesia on the same day. The immigration records at the date of the said order indicate his date of birth as 10 August 1965.

MITIGATION

D1

11.  D1 has three previous convictions consisting of two offences of theft in 2005 and 2013, one of which related to pickpocketing, and one offence of breach of deportation/expulsion order in 2014.

12.  D1, aged 32, is from a poor family in Indonesia and there are no government subsidies.  He is of low education level as he left school at the age of 16. His father passed away.  His mother, aged 55, is feeling unwell with a cyst in the womb.  He also has a younger sister aged 15.  D1 was a divorcee but he has now remarried.  He is the sole breadwinner of the family. 

13.  Out of shame, he has not been able to tell his wife and family as to what had happened to him. He committed the present offences out of stupidity. It is submitted that there was nothing particularly serious about his breach of the deportation order.  He is remorseful for what he did and will not come to Hong Kong again. He pleaded guilty at the first available opportunity.

D2

14.  D2 has one previous conviction of theft in 2007.

15.  D2, aged 51, is an Indonesian national.  He is married with 2 sons aged 19 and 17, both are students.  He received education up to junior high school.  He works as a rice farmer with an unstable income, which is dependent on the harvest. He also works as a part time taxi driver earning about HK$1,800 to $3,600 per month.  He is the main financial support of the family.

16.  He also supports his mother, aged 93, who is quite ill and suffering from a number of old aged related medical ailments.  He is afraid that he may not able to see his mother alive by the time he returns home. 

17.  He underestimated the legal consequences and, out of sheer stupidity, committed the present offences.  He gave an early indication of guilty plea to Charge 3.  His guilty pleas show his regret and remorse. 

18.  He came to Hong Kong alone and wanted to source and buy some 2^nd hand mobile phones here to resell in Indonesia.  He met D1 and D3 in a restaurant in Causeway Bay.  On 3 June 2016, the three of them went to Tsim Sha Tsui.  D2 wanted to change some Hong Kong dollars at a HSBC bank.  On leaving the bank and walking along Nathan Road, the plan was hatched.

D3

19.  D3 has a clear record.

20.  D3, aged 36, is now a divorcee.  She has four sons aged between 3 and 16 and an adopted daughter aged 7.  All children are dependent on her and, except the youngest son, are attending school.  Her father passed away.  She and her children live together with her mother and stepfather.  The family is supported by her and her stepfather.  She works as a sales lady earning about HK$500 per month whereas her stepfather works as a driver.

21.  Her family is now relying on the support of her stepfather’s income and relatives. She is very concerned about her children and wishes to return home to take care of them as soon as possible.

22.  She came to Hong Kong as she wanted to make some money for her family.  This was the first time she came to Hong Kong.  She committed the present offence due to poverty.  She deeply regrets her decision on coming to Hong Kong.

23.  She played a minor role and did not take part in the first attempt.

24.  Mitigation letters written by D1 and D3 were submitted to the court for consideration. The contents of the two letters basically confirm the mitigation advanced by their counsel.

25.  Both counsel for D1 and D2 have also referred me to HKSAR v Ta Dinh Son also known as Bui Trong Khoai and Ngo Van Thanh, CACC 348/2013, HKSAR v Ngo Van Huy, CACC107/2004 and HKSAR v Lacharon Wilson Fernandez and Another, DCCC 669/2016.

SENTENCE

26.  I have carefully considered everything said by the defence counsel on behalf of each of the three defendants in mitigation.

Charge 1

27.  The Court of Appeal in Ngo Van Huy sets out a guideline of 12 to 15 months imprisonment after trial for a first offender of pickpocketing.  The said starting point can be increased if there exist aggravating features which include: (i) the presence or use of a weapon; (ii) the offence is committed in a place in which the public is at particular risk, such as crowded places like the MTR or the racecourse, crowded shopping areas where the pedestrian traffic is heavy; (iii) the accused commits the offence in conjunction with another. Where he is part of an organized and professional ring of thieves, a substantial increase in sentence may be called for; and (iv) the accused is a repeat offender or persistent offender. I am satisfied that no distinction is to be drawn by the fact that this was an attempt. An attempt to commit an offence carries the same punishment as if the offence was actually committed.

28.  In HKSAR v Xiao Ping & others, CACC 147/2012, three defendants were convicted of attempted theft.  They attempted to steal from the carrier bag of a shopper inside a shop in Mongkok and were arrested nearby.  They were first-time offenders.  A starting point of 15 months’ imprisonment was considered appropriate.  Although the operation was not well planned and the shopping area was not crowded at the time, there were aggravating facts, namely that they acted in concert and the offence took place in a well-known shopping area. After considering the aggravating factors, the Court of Appeal held that the starting point should be 21 months.  However, two months were reduced from the starting point on account of the defendants’ handicap.

29.  In light of the above authority, I find that the appropriate starting point for the present offence is 15 months’ imprisonment. I note that both D1 and D2 have previous convictions of theft and one of D1’s theft convictions involved pickpocketing.  As there has been a lapse of some years between their last theft convictions and the present offence, I would not treat their previous theft convictions as aggravating factors.

30.  I accept that, as submitted by the defence, no weapon was involved and the acts of the defendants could not be said to display a high level of organization or professionalism.  I also note that D2 entered Hong Kong a few days after D1 and D3.  As such, I cannot rule out the suggestion made by the defence that D2 happened to meet D1 and D3 in a restaurant in Causeway and the plan was hatched as they were leaving the bank and walking along Nathan Road.

31.  Although there is no evidence as to whether or not the offence location was particularly crowded, I was told by the counsel for D1 that, according to the statement of one of main police officers involved in the present case, the place was described as “medium crowded”.  In any event, Tsim Sha Tsui is undoubtedly a well-known tourist and shopping area.  This offence was committed by more than one person and the facts admitted by the defendants clearly showed that they were acting in concert, ie, (i) one defendant was covering the other defendant whilst unzipping T2’s sling bag; (ii) three defendants were standing closely against T2 when one of them held T2’s sling bag with his left hand and made some movement with his right hand.  When T2 pulled his sling bag from his side to his front, all three defendants slowed their pace and talked to each other. They then continued to follow both T1 and T2 from a distance and, after a short time, one defendant looked back talking to the other two defendants.  By reason of these aggravating factors, I enhance the starting point by 6 months to 21 months.

32.  It was submitted that D3 played a minor role.  She participated in this joint enterprise.  She is, in my view, equally culpable as the other two defendants.  Based on the roles they have played, I am satisfied that there is no distinction between their sentences.

33.  I am skeptical as to D2’s assertion regarding the poor health of his aged mother.  If one is concerned about one’s parent, one should avoid getting involved in this sort of offences in the first place.  I don’t consider this as a ground to reduce his sentence.

34.  Apart from the defendants’ guilty pleas, I don’t see any other mitigating factors justifying any further reduction in sentence.  Giving full credit for their guilty pleas, I sentence each of them to 14 months’ imprisonment.

Charge 2 and Charge 3

35.  In Ta Dinh Son, the Court of Appeal concluded that a starting point of 27 months imprisonment after trial is appropriate for a first offence of breach of deportation order.  In HKSAR v Pham Van Tuan, CACC 272/2010, the defendant pleaded guilty to one charge of unlawful remaining and one charge of breach of deportation order.  It was his second breach of the deportation order.  For the breach of deportation order offence, he was sentenced to 21 months’ imprisonment.

36.  As this was the second breach of the deportation order by D1, I therefore adopt a starting point of 31½ months’ imprisonment.  Regarding D2, I note that this was his first breach and adopt a starting point of 27 months’ imprisonment.

37.  Apart from their guilty pleas, there exist no other mitigating factors.  I sentence D1 to 21 months’ imprisonment for Charge 2 and D2 to 18 months’ imprisonment for Charge 3.

38.  The attempted theft offence and breach of deportation order offence are separate offences and different in nature.  Bearing in mind the totality principle, I am satisfied that a total of 27 months’ imprisonment for D1 and a total of 24 months’ imprisonment for D2 would be appropriate.  Hence I order as follows:-

D1

Charge 1 - 14 months’ imprisonment

Charge 2 - 21 months’ imprisonment

13 months of Charge 2 to run consecutively to Charge 1 making a total of 27 months’ imprisonment

D2

Charge 1 - 14 months’ imprisonment

Charge 3 - 18 months’ imprisonment

10 months of Charge 3 to run consecutively to Charge 1 making a total of 24 months’ imprisonment

D3

Charge 1 - 14 months’ imprisonment