R. v. SALDANA ALCA JOSE and Another

IN THE COURT OF APPEAL

1996, No. 655
(Criminal)

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J U D G M E N T

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Hon P Chan, J. (giving the judgment of the Court) :

1. The 1st and 2nd applicants pleaded guilty in the District Court to one count of theft. The 1st applicant was sentenced to two years and eight months' imprisonment and the 2nd applicant to two years and four months. They now apply for leave to appeal against sentence.

2. The facts in this case were admitted. On 14 August 1996, the two applicants together with a third person approached a 78 years old tourist who was waiting for a taxi outside a hotel. They deliberately spilt tomato juice on the old man and offered to clean it up. While doing so, they stole the man's briefcase. When the man shouted robbery, the applicants and the third person fled. The 1st applicant was apprehended by a hotel staff who came to the scene to assist the victim. The 2nd applicant was arrested two days later at the airport when he was trying to leave Hong Kong. Both applicants admitted the offence under caution.

3. The briefcase contained the victim's passport, a bank passbook, $1,200 cash, an air ticket and a piece of jade. The value of the jade was later assessed by a valuer to be about $1.5 million, but this was not beyond dispute.

4. The two applicants were Peruvians. The District Judge took the view that they came here to commit crimes and were not looking for a job as their lawyers had submitted. The learned judge considered that a deterrent sentence was necessary. She adopted a starting point of four years imprisonment. The 1st applicant was given a one-third discount for his plea. The 2nd applicant was given an additional four months discount for offering to help the police in trying to arrest the third culprit.

5. Before the District Court, counsel for the applicants submitted that they came here to look for jobs in Hong Kong or South East Asia generally. The judge in her Reasons for Sentence remarked :

"I find it difficult to believe that this was a genuine attempt to find a job. I think it much more likely that they came here to commit crimes of this nature given the professional nature of this snatching."

6. As a ground of appeal, it was alleged that there was no basis for the sentencing judge to make such a finding. Counsel applied for leave to adduce further evidence in the form of affirmations in order to put before this Court the backgrounds of the two applicants and the reasons for their coming to Hong Kong. We granted leave for the applicants to do so. Each of them had filed an affirmation setting out what he did in Peru and why he came to Hong Kong. Both denied that they had any intention of committing the present offence. At the adjourned hearing, we gave leave to the prosecution to cross-examine the two applicants on their affirmations.

7. At the end of the hearing, we showed concern for the number of similar cases which had recently come before this Court. We requested to be supplied with statistics regarding the prevalence of this type of offence. We gave leave to the prosecution and the applicants to make further submissions if necessary. In the event, some statistics were provided to us by the police. It seems, however, that these statistics are inconclusive and that nothing significance can be gathered from them. We do not think it is necessary to hear any further submissions from counsel.

8. The 1st applicant said in his affirmation that he was a chocolate vendor in Peru and came to Hong Kong to see if he could go to Japan and work there. He said that although he was not sure whether he would get a job in Japan, he knew a lady there whose name he could not remember. When he was asked about his air ticket which showed that the destination was Hong Kong and Japan was only a place of transit, he explained that his plan was that if he could not go to Japan, he would then come to Hong Kong and this was what happened. He said that he had been sightseeing in Hong Kong for more than two weeks. He had only tried to find out how he would go back to Japan or Peru from an agency. He admitted that he had told his lawyers to tell the Court that he was looking for a job in Hong Kong although that was not the case.

9. The 2nd applicant said in his affirmation that he was a businessman dealing in clothing in Peru. He came to Hong Kong to see if he could buy some clothes here and take them back for resale in Peru. He had no intention to steal in Hong Kong. When he gave evidence in Court, he said that he intended to come to Hong Kong to buy cheap clothes because they were more comfortable and easier to sell in Peru. He had looked around to see the situation but had no intention to buy in big quantities. He also admitted that he wanted to go to Japan to look for a job.

10. Having heard their evidence, we have absolutely no doubt that they were not telling the truth. Not only were their explanations a departure from what their counsel had told the Court below, they were also so flimsy as to be almost inherently unbelievable. The 1st applicant did not even have a visa to go to Japan and it was clear from his ticket that his destination was not Japan but Hong Kong. During the time he was in Hong Kong, he did virtually nothing constructive to go back to Peru or seek entry to Japan. It is difficult to imagine how his lady friend whose name he could not even remember could help him get a job in Japan. The 2nd applicant's story about getting second hand clothes in Hong Kong was equally incredible. What he said in his affirmation was not even consistent with what he said in evidence.

11. The two applicants clearly did not come to Hong Kong to look for a job or to buy second hand clothes. Nor can we accept that they came here in order to go to Japan or South East Asia to look for jobs. They do not know English, Chinese or any of the South East Asian country languages. They do not have any visa or working permit. It would be a breach of their condition of stay if they tried to work in Hong Kong. They were clearly not the ordinary tourists. The only conclusion which one can draw is that they intended to try their luck here by attempting to do something illegal. We agree with the sentencing judge that the applicants came here for no other purpose than to look for easy money by any means and were prepared to commit crimes such as the present offence.

12. Counsel also submitted that the sentencing judge was wrong to over-emphasize the professional nature of the offence. He accepted that the offence was pre-meditated but said it was very primitive. In our view, there are degrees of professionalism in the commission of crimes. Whether what is perpetrated can be regarded as primitive is a matter of opinion. Many serious crimes are indeed committed using simple methods. The present offence was clearly organised and planned. It was also in our view a professional job. This must be an important consideration in passing sentence.

13. Counsel for the applicants finally submitted that the judge was wrong to adopt a starting point of four years. He submitted that the authorities suggested that a starting point should be ten to fifteen months. Although what was committed here was theft, it was in essence more than an ordinary theft. It was an organised operation on an elderly victim and was similar to snatching. Apart from these aggravating features, this offence was committed by people who had deliberately come to Hong Kong not solely for the purpose of sightseeing but were prepared to commit crimes to suit their own purposes. A lenient sentence would send a wrong message that Hong Kong is a haven for criminals. While we think that on the authorities referred to us, the starting point in this case might seem to be on the high side, it cannot be said, in the light of the aggravating circumstances, that it was wrong in principle or manifestly excessive. The judge had given sufficient discount to the applicants for their pleas. We do not accept that the sentences were inappropriate. The applications for leave to appeal against sentence are refused.

14. We take this opportunity to indicate that in our view, because of their seriousness, organized crimes of this nature including group pickpocketing, even without international ramifications, might in future properly attract a starting point of at least 2 1/2 years' imprisonment.