HKSAR v. ROMERO GONZALES DANIEL ALFREDO AND OTHERS

DCCC 1320/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1320 OF 2009

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Reasons for Sentence

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Charges

1.  D1 to D4 plead guilty to the following thefts:

(1)  As against all 4 Defendants, at Delifrance, of a shoulder bag containing valuable items on 2 November 2009 (3^rd Charge);

(2)  As against D1, at Tsim Sha Tsui Ferry Pier, of a bag containing valuable items at an earlier time on the same date (2^nd Charge);

(3)  As against D2, at McDonald’s, of a computer bag containing valuable items on 22 October 2009 (1^st Charge).

Facts of 3^rd Charge (against D1 to D4)

2.  In the morning on 2^nd November 2009, the police mounted an anti-theft operation in Wanchai. The 4 Defendants were seen talking among themselves and acting suspiciously. They entered Delifrance in C.C. Wu Building together. D1 went up to a table where a shoulder bag was placed on a chair. He took it and covered it with his own bag. Whilst he was doing so, D2 to D4 stood on his two sides. After taking the shoulder bag, D1 left. D2 to D4 followed him closely. D2 took off his shirt and hat and put them into his rucksack. After walking for a while, he let D1 put the shoulder bag stolen into his rucksack. When D1 and D2 reached Wan Chai Park, D2 took out the shoulder bag from his rucksack, looked into the shoulder bag with D1. They slapped at each other’s hand. D3 and D4 entered the park shortly afterwards. D2 took out the shoulder bag again to show its contents to D3 and D4. The police intercepted D1 to D4 at this juncture.

3.  The owner of the bag, Wu, was located by the police. He was in Delifrance with his friend, Tao. According to Wu and Tao, Wu had gone to the cashier counter to buy food whilst Tao was to look after their belongings including the shoulder bag. A South American male had gone up to Tao to point at Tao’s trousers, which were stained. Tao had bent down and cleaned his trousers. When Wu returned to their seats, he found his shoulder bag missing.

4.  The shoulder bag (valued at $9,800, HK$, unless otherwise stated) contained:

(a)  a wallet (valued at $3,000);

(b)  a pen (valued at $3,500);

(c)  two card holders;

(d)  cash of RMB¥2,501, $160 and US$10;

(e)  a PRC identity card;

(f)  a passport of TAO;

(g)  a travel permit;

(h)  seven bank cards;

(i)  a bank passbook;

(j)  two Octopus cards;

(k)  a security code device key chain;

(l)  a USB device; and

(m)  a key bag with five keys.

5.  CCTV recording at CC WU Building captured the images of D1 to D4 inside the building and appearing near Delifrance at the material time.

Facts of 2^nd charge (against D1)

6.  Police investigation of the Delifrance theft recovered a bag which contained a laptop computer, an adaptor and a USB cable stolen from LIN Chi-fai by D1 at around 10:10 a.m. on the same date in Tsim Sha Tsui Ferry Pier, Tsim Sha Tsui.

7.  According to LIN, he was a telecom technician. He brought along his tools, including a bag which contained a laptop computer, an adaptor and a USB cable to the security room of the Tsim Sha Tsui Ferry Pier, Tsim Sha Tsui to take up an assignment of work. When he was processing his registration at the security room, he left his belongings, including the bag, outside the room without paying attention to them. After going out of the room, he discovered that he lost the bag with the said contents. A report was made to the police.

8.  The police subsequently showed him the bag and its said contents. The laptop computer was valued at $4,800.

Facts of 1^st Charge (against D2)

9.  Police investigation of the Delifrance theft revealed a theft of a computer bag belonging to CHAN Himan which happened at 10:30 a.m. on 22 October 2009 at McDonald’s on 1^st Floor, No. 8 Russell Street, Causeway Bay.

10.  According to CHAN, she was at McDonald’s with her friend. She placed a silver-white computer bag containing a laptop computer and a USB device (valued at $15,900 in total) on the sofa without paying much attention to them. When she was about to leave at around 11:10 a.m., she found the computer bag and its said contents missing. A report was made to the police. The lost properties could not be recovered.

11.  CCTV recording captured the images of 3 suspects loitering around the table of CHAN at the material time. A suspect, later revealed to be D2, took something in silver-white near CHAN, covered it up with a rucksack and fled. The other two suspects followed suit.

Police interviews with D1

12.  D1 said:

(a)  He came to Hong Kong for business purpose in September 2009;

(b)  He came to know D2 after arriving in Hong Kong;

(c)  On 2November 2009, he went to Wanchai with D2, joined by D3 and D4 at the Wanchai MTR station;

(d)  The four of them went to Delifrance;

(e)  There he stole a shoulder bag whilst D2 distracted the attention of the victim;

(f)  After leaving Delifrance, D2 asked him to put the shoulder bag into D2’s rucksack (3^rd Charge).

(g)  Earlier on, he had stolen a bag left unattended on the ground in Tsim Sha Tsui Ferry Pier;

(h)  He then met up with D3 in Wanchai and gave D3 the laptop computer and the accessories to keep (2^nd Charge).

Police interviews with D2

13.  He said:

(a)  He came to Hong Kong for business purpose in October 2009;

(b)  He came to know D1 in Kowloon Park on 1 November 2009;

(c)  On 2November 2009, D1 stole a shoulder bag at Delifrance and gave it to him to keep (3^rd Charge);

(d)  On 22 October 2009, he did go to McDonald’s as shown in the images captured from the CCTV;

(e)  He denied stealing anything there or knowing the other suspects (1^st Charge).

Police interviews with D3

14.  He said:

(a)  He came to Hong Kong with D4 on 30 October 2009;

(b)  On 2 November 2009, he and D4 came to know D1 and D2 through another friend;

(c)  He went sightseeing with D1 and D2 in Tsim Sha Tsui;

(d)  He went to Delifrance with D1, D2, and D4;

(e)  He did not know what they were doing there;

(f)  After a while, when D1 and D2 left, he and D4 followed suit (3^rd Charge).

Police interviews with D4

15.  He said:

(a)  He came to Hong Kong with D3 on 30 October 2009;

(b)  On 2 November 2009, he and D3 met up with D1 and D2 in Tsim Sha Tsui for sightseeing;

(c)  He went to a coffee shop in Wanchai with D1 to D3;

(d)  At one point, D1 to D3 walked so quickly that he lost sight of them;

(e)  They met up again in a park where D1 took out a laptop computer from D2’s rucksack.

Mitigation put forward

16.  They all have a clear record in Hong Kong. They were all born in Peru and came from its capital city, Lima. D3 and D4 claim to know each other but not D1 or D2 before coming to Hong Kong. D1 and D2 did not know each other or D3 and D4 before coming to Hong Kong.

17.  They are each married and have children. They claim to have come for business purpose but succumbed to stealing without prior planning. Only D1 and D3 can prove their business or purchase of merchandise in Hong Kong. D2 and D4 can offer nothing as proof.

18.  The police have seized from D2 cash US$1,155 and (HK)$3,366.70. D2 is agreeable to applying such sums in compensation of the victim, CHAN Himan, in the 1^st Charge.

Sentencing discussions

19.  Solicitors for D1 to D4 accept that the present facts can be treated on a par with pickpocketing. In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal laid down a guideline sentence of 12 to 15 months for pickpocketing after trial for a first time offender.

20.  Joint enterprise featured in the 1^st Charge (McDonald’s) and the 3^rd Charge (Delifrance). Where there were aggravating factors such as joint enterprise, a heavier sentence would be imposed (per Ma CJHC in Ngo Van Huy, at 7).

21.  In The Queen v Nguyen Phan Linh CACC454/1989, on an evening the applicant and another man were seen in Cameron Road, Tsim Sha Tsui. The other man bumped against a Chinese woman, keeping close to her and thereby affording the applicant the opportunity of opening her handbag and removing a purse. The woman screamed. The applicant threw the purse to the ground and, with his accomplice, made off. Kempster JA stated, at para. 8, that:

“[W]hen a man acts in concert with another or others in committing [pickpocketing] a judge may properly regard 2 1/2 years as a starting point for his consideration of sentence.”

22.  In HKSAR v Liao Mei CACC 432/2004, the three applicants operated as a pickpocketing gang. They crowded around a young woman at Sham Shui Po MTR station. When the train arrived they boarded the train with her. On the train they stood close to her and one of them removed a mobile phone from her rear jeans pocket and immediately passed it to another. The Court of Appeal agreed with the sentencing judge’s starting point of 2 ½ years.

Present sentence

23.  Each defendant played an important though different role in a well-organised team at Delifrance. Their culpability was the same. They employed some tactics to camouflage and escape from the scene as well as to hide the loots. In line with the authorities, I take 2 ½ years as the starting point. I reduce it to 20 months due to their plea of guilty. This is the sentence for each defendant in the 3^rd Charge.

24.  D1 committed the theft at Tsim Sha Tsui Ferry Pier single-handedly. I take 12 months as the starting point. I reduce it to 8 months due to his plea of guilty. This is his sentence in the 2^nd Charge.

25.  D2 committed the theft at McDonald’s with 2 other people. There is no detail given by the prosecution as to any planning or tactics except that they were loitering around the victim’s position before stealing. I take a starting point of 24 months. I reduce it to 16 months due to his plea of guilty. He does not resist a compensation order of the rather substantial sums of cash seized from him. I give him 1 month’s extra discount. His sentence is 15 months in the 1^st Charge.

26.  The 3 charges related to separate transactions and attract consecutive sentences. Finally, by totality, I make the following order:

(a)  D1 to serve 20 months for the 3^rd Charge plus 4 consecutive months for the 2^nd Charge;

(b)  D2 to serve 20 months for the 3^rd Charge plus 6 consecutive months for the 1^st Charge.