HKSAR v. PETROVIC BRANISLAV AND ANOTHER

DCCC 1167/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1167 OF 2012

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REASONS FOR SENTENCE

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1.  Mrs Petrovic pleads guilty to three charges of theft of jewellery, contrary to section 9 of the Theft Ordinance, Chapter 210 (charges 1-3). Mr Petrovic earlier pleaded guilty in the Tsuen Wan Magistracy to the same three charges and one further charge of theft when he was sentenced to 12 months imprisonment.

2.  Both Mr & Mrs Petrovic each plead guilty to a charge of using a forged travel document, contrary to sections 42(2)(b) of the Immigration Ordinance, Chapter 115 (charges 4 & 5); and one joint charge of possession of false instruments, contrary to section 75(1) of the Crimes Ordinance, Chapter 200 (charge 6).

Charges 1-3

3.  In summary on the 18 September last year Mr & Mrs Petrovic arrived in Hong Kong.  The next day they attended the Hong Kong Jewellery and Gem Fair 2012 held at the AsiaWorld-Expo.  At about 14:26 Mr & Mrs Petrovic attended the booth of ABA Emerald SAS C1 when Mr Petrovic requested the owner to show him various pieces of jewellery.  Mr Petrovic was then seen to put one piece of jewellery in the left pocket of his jacket and then leave together with Mrs Petrovic  (charge 1).

4.  At 16:05 the owner saw Mr & Mrs Petrovic again and called the police who intercepted them.  During a search of Mrs Petrovic’s bag the police found the piece of jewellery stolen from ABA Emerald together with jewellery belonging to Sunny Gems and Bay’s Gem & Pearl Company Limited which had also been stolen from booths they had set up at the fair (charges 2 & 3). 

5.  The total value of the jewellery was US$18,600.  The fourth charge to which Mr Petrovic pleaded guilty in the Magistracy was also theft of jewellery at the fair, the value of which was US$21,014.

Charges 4-6

6.  Mr & Mrs Petrovic appeared in court on the 21 September when they were granted bail.  Conditions of bail included the surrendering of their travel documents and that they were not allowed to leave Hong Kong. 

7.  On the 12 October Mr & Mrs Petrovic went to the Departure Hall at the Hung Hom Control Point in an attempt to leave for Guangzhou by train.  They both presented a forged Bulgarian passport.  Immigration officers suspected the travel documents were forgeries and on making enquiries Mr & Mrs Petrovic admitted their real names (charges 4 & 5).

8.  The police were called and arrested Mr & Mrs Petrovic.  A search of the luggage of Mrs Petrovic revealed a forged Bulgarian identity card and driving licence in the same name as the forged passport she used.  In a video interview Mr Petrovic said he purchased the forged documents from an unknown person in Tsim Sha Tsui for US$3,000. 

9.  In passing sentence I have carefully considered everything said on behalf of Mr & Mrs Petrovic by Mr Egan, including the effect the arrest and incarceration has had upon their family in Sweden; the health condition of both Mr & Mrs Petrovic together with the background report on Mr Petrovic prepared in the Magistracy.  I take into account that both Mr & Mrs Petrovic have no previous convictions.

Theft

10.  Mr Egan submits this is not a case where Mr & Mrs Petrovic came to Hong Kong for the purpose of stealing jewellery.  One of their daughters was studying jewellery design in Italy and intended to open a shop in Sweden.  Therefore Mr & Mrs Petrovic first went to a jewellery fair in Bangkok where they purchased a large quantity of jewellery to be used as stock-in-trade for their daughter’s shop. After going to Bangkok they came to Hong Kong and attended the fair at AsiaWorld-Expo.

11.  Mr Petrovic on seeing the lack of security at the fair was tempted into stealing the jewellery.  The owner of ABA Emerald although seeing that Mr Petrovic put the jewellery in his pocket could not do anything to prevent him leaving as she needed to first secure the rest of her jewellery.  The owners of Sunny Gems and Bay’s Gem & Pearl were not even aware jewellery had been stolen until the police recovered the jewellery. This Mr Egan explains is not to undermine the seriousness of the thefts but to explain that they were spontaneous and not planned.

12.  Mr Egan describes Mrs Petrovic as a loyal wife accompanying her husband on the trip to Asia and that she very much was the passive buyer in the purchase of jewellery.  Mr Egan explained Mrs Petrovic’s role in the theft of the jewellery was more akin to that of an accessory after the fact in that she assisted her husband by keeping the jewellery, knowing the jewellery had been stolen.  Taking this into account together with the fact Mr Petrovic faced one further charge of theft of jewellery valued at US$21,014, Mr Egan submits that I should distinguish between the criminality of Mr & Mrs Petrovic.  I agree.

13.  However I must say a starting point of 18 months imprisonment for theft of jewellery valued at nearly US$40,000 from an international trade fair thereby harming the international reputation of Hong Kong appears a little on the light side.  Having said that I do not have the benefit of the reasons for sentence. 

14.  I am satisfied the proper starting point after trial on each of the theft charges is 12 months imprisonment.  Giving Mrs Petrovic full credit for her pleas of guilty she is convicted and sentenced to 8 months imprisonment concurrent on each of charges 1, 2 & 3, the offences having been committed on the same day.

Forged travel documents and false instruments

15.  There are no guidelines for sentencing in respect of using a forged travel document. In R v. Yu Wing Wut CACC 346/1984 the Court of Appeal said the proper sentence on a plea was one of 18 months imprisonment.   In that case an illegal immigrant had used a forged travel document in an attempt to leave Hong Kong to go to the Philippines. 

16.  A starting point of 27 months imprisonment has been upheld for example in HKSAR v Pak Wan Lung CACC 573/1998 and HKSAR v Rakesh Kumar Sthapak [2005] 1 HKLRD 643.  There are also similar cases where lower sentences have been imposed.  Further in HKSAR v Tseung Yim Kwan CACC 531/2005 (a case concerning possession of a forged two-way permit) the Court of Appeal commented that the case of Yu Wing Wut was decided well before the policy of giving a one-third discount for a plea of guilty and therefore the Court in 1984 when judgment was given may not have had a starting point as high as 27 months in mind.  

17.  Using a forged travel document to leave Hong Kong and in doing so attempt to evade justice is very serious.  The use of a forged travel document in itself attracts a substantial prison sentence and as can be seen up to 27 months for a single offence.  That the use is to evade justice aggravates the offence for which a higher sentence may be appropriate depending on the circumstances.  I note that at present there is no extradition agreement between Hong Kong and Sweden.

18.  In my view a starting point of 27 months imprisonment is appropriate.  Mr Egan has again submitted that I draw a distinction in the criminality of Mr & Mrs Petrovic on these charges.  I disagree.  Whilst Mr Petrovic was the one who obtained the forged travel documents the criminality of the charge is in their using and in this regard that criminality is the same.  Full credit being given for their pleas of guilty Mr & Mrs Petrovic are convicted and sentenced to 18 months imprisonment on charges 4 & 5 respectively.

19.  Charge 6 relates to a forged Bulgarian identity card and driving licence in the same name as the forged passport used by Mrs Petrovic.  I am satisfied a starting point of 12 months imprisonment is appropriate.   Full credit being given for their pleas of guilty Mr & Mrs Petrovic are convicted and sentenced to 8 months imprisonment on charge 6.

20.  As indicated in court I am of the view this charge does not increase the criminality of Mrs Petrovic.  Arguably as Mr Petrovic was the one who arranged the purchase of the forged documents his criminality is higher.  However I am satisfied the criminality of Mr Petrovic is fully reflected in the sentence for charge 4.  Accordingly I order the sentence on charge 6 to be served concurrent to charges 4 & 5.

Totality

21.  I now turn to consider the totality of sentence to be served by Mr & Mrs Petrovic. Mr Egan very properly accepts that the thefts and the use of forged travel documents are entirely separate and distinct offences for which consecutive sentences are appropriate.   Mr Egan asks however I consider part concurrent on the grounds of totality.

22.  Whereas the criminality is different there is a link between the two sets of offences. In the circumstances I am satisfied a total sentence of 2 years imprisonment for Mr Petrovic and 1 year and 8 months for Mrs Petrovic properly reflect their criminality on the charges.

23.  Finally whilst I sympathise with Mr & Mrs Petrovic as to their health condition I am satisfied the prison authorities will closely monitor their health as they have already done so.  Should there be deterioration in their health they can seek clemency from the executive.  I am satisfied there are no strong humanitarian grounds to further reduce the sentences in this case.

Sentence

24.  Sentence is as follows:

Mr Petrovic

Charge 4 – 18 months imprisonment;

Charge 6 – 8 months imprisonment concurrent to charge 4.

12 months consecutive and 6 months concurrent to the sentence he is now serving;

Mrs Petrovic

Charges 1-3 – 8 months imprisonment concurrent on each charge;

Charge 5 – 18 months imprisonment;

Charge 6 – 8 months imprisonment concurrent to charge 5;

12 months of the sentence on charges 5 & 6 to be served consecutive and 6 months concurrent to charges 1-3.

The total sentence to be served by Mr Petrovic is 2 years imprisonment and by Mrs Petrovic is 1 year and 8 months imprisonment.