HKSAR v. MATELUNA ARAYA HUGO PEDRO AND OTHERS

DCCC 618/2019

[2019] HKDC 1642

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 618 OF 2019

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REASONS FOR SENTENCE

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Background

1.  All Defendants pleaded guilty to the charges laid against them.  Charge 1, theft by pickpocketing, involved D1 and D2.  Charge 2, theft by pickpocketing involved D1 to D3.  Charge 3, theft by pickpocketing involved D1 to D3.  Charge 4, theft by finding, involved D2 only.    

Extract of admitted facts

2.  D1, D2 and D3 entered Hong Kong as a visitor on 5^th, 14^th and 6^th February 2019 respectively. 

Charge 1

3.  At about 1630 hours on 21^st February 2019, PW1 left her handbag on her chair in a teahouse in Star House, Tsim Sha Tsui.  Her handbag contained items including PW1’s purse, cash of HK$4,500, two bank cards, 4 credit cards and “meltu” brand mobile phone.

4.  CCTV retrieved from the teahouse captured what happened.  It revealed D2 walked across PW1’s table while PW1 was having tea with her friends.  D2 pretended taking some photos of the view with his mobile phone.  D1 sat on a chair behind PW1.  Hiding his hand with his backpack, D1 pulled away PW1’s handbag from the chair and kept it in his backpack.  D1 quickly left his seat and D2 left the teahouse. 

Charge 2

5.  At about 1258 hours on 23^rd February 2019, PW2 had cash of HK$130,740 with her inside a plastic bag while waiting for the train in Wan Chai MTR station.  Just before she boarded the train, some South American man standing in front of her bounced at her and starting coughing as he bent towards PW2.  As PW2 eventually got onto the train, she found her bag to have been slashed and the stack of cash had gone missing.  D1, D2 and D3 admitted in their video-recorded interviews their role in committing the offence.  The money was not recovered from the Defendants as they have either spent the money or remitted some to their families. 

Charge 3

6.  At about 1043 hours on 27^th February 2019, police officers started following the Defendants and a wanted person (WP).  They entered into the Hong Kong Convention and Exhibition Centre (HKCEC) in Wan Chai where an international jewelry exhibition would be held in the following day.  PW4, a representative of one of the jewelry company, left her computer bag with a colleague PW5.  The Defendants and the WP left HKCEC subsequently and the WP had with him a black paper bag and boarded a taxi.  CCTV captured the presence of the Defendants.  The police officer intercepted the taxi and retrieved PW4’s computer bag, which contained among other things, a notebook computer, a pack of jewelry and identity documents.   

Charge 4

7.  The police seized a RMB 50 banknote from D2 following his arrest.  D2 stated under caution that he picked it up from the toilet of a McDonald’s in Central on a day unknown in February 2019 and kept it as souvenir for his daughters. 

Defendants’ criminal records and mitigation

8.  D1 has a clear record in Hong Kong.  He is now aged 51.  He is married but separated from his wife.  Among other things, he committed the offence out of financial difficulty.  His girlfriend and his son have recently received operation regarding urinary issue and gallbladder issue respectively.    

9.  Counsel for D1 assisted the court fairly by citing HKSAR v Ngo Van Huy CACC 107/2004 and HKSAR v Sandagdorj Altankhuyag [2014] 1 HKC 206.

10.  D2 has a clear record in Hong Kong.  D2 is now aged 48, a single father of two daughters.  Among other things, D2 alleged that he was brought to Hong Kong on the false pretenses that he would be offered a job. 

11.  Counsel for D2 assisted the court fairly by citing HKSAR v Ngo Van Huy CACC 107/2004; HKSAR v Liao Mei CACC 432/2004; HKSAR v Tan Hong Sheng CACC 238/2005; HKSAR v Yip Wai-leung CACC 430/2004. 

12.  D3 has a clear record in Hong Kong.  D3 is now aged 26, single and is a father of two young sons.  He alleged that he came to Hong Kong as tourist.  He committed the present offence three weeks after his arrival and expressed remorseful for that.   Counsel for D3 also assisted the court by citing similar authorities as counsel for D1 and D2 did.

Sentencing consideration and discussion

Aggravating features

13.  Regarding pickpocketing, a guideline starting point of 12 to 15 months is warranted for a first time offender with no aggravating features in the case (HKSAR v Ngo Van Huy [2004] HKCA 282). 

14.  Where the act was well-orchestrated by a number of accomplices, heavy sentences shall be imposed (HKSAR v Chan Meimyee Carman [2010] 4 HKC 571). 

15.  Being a foreigner coming to commit the crime was another aggravating feature. In HKSAR v Tan Hong Sheng as cited before, three defendants were each of a clear record and on a two-way permit arriving from the Mainland one day prior to the offence of pickpocketing.  Near the Kowloon Star Ferry Pier, one blocked the way of the victim, another held the victim’s handbag steady for the other to unzip it to steal the victim’s mobile phone.  The Court of Appeal approved the four aggravating factors identified by the sentencing judge, namely (1) the location being crowded; (2) joint enterprise by three; (3) international element; (4) the move being well-organised, well planned and quite professional.  After reviewing a number of authorities, the starting point of 2 years 6 months was affirmed.  

16.  This case is similar to Tan’s case. They came into Hong Kong with intention to steal.  The present offence involved a syndicate from South America which contained an international element and all defendants were party to the syndicate.  I do not accept that D2 came here with false pretenses at the outset.  The crimes were committed in a well-organized and premeditated way because the Defendants carefully chose the vulnerable victims in the course.  Charges 1 to 3 involved joint enterprise.  One or more members of the syndicate played the role of diverting the victim’s attention and the remaining members carried out the act of stealing. In the present case, I can see no differentiation in their roles and without each of their participation, the crime might not be smoothly executed. 

17.  Charge 1 also involved one mobile phone, which is a smart phone.  The Court of Appeal has this to say in Liu Lin Feng CACC 206/2011(a case of pickpocketing):

“Para. 36: iPhones and similar third-generation telephones are not only expensive items, easily sold on and difficult to trace once the SIM cards have been removed, invariably they contain large amounts of data of importance to the owner, data that is both practical and sentimental. Their theft therefore may well put their owners to a high degree of distress and inconvenience.”

18.  Charge 2 involved substantial loss of the victim in the sum of HK$130,740 cash, which is another aggravating factor.

19.  Charges 1 to 3 were committed within a period of 7 days.

20.  I could have made an upward adjustment by reason of D1’s and D2’s misleading statements to the police during investigations but I decided not to do so as the cumulative effect of the aggravating features are serious enough to adopt a higher starting point.

Mitigating factors

21.  The only powerful mitigating factor is their early guilty plea.  Nothing in their personal background and family circumstances justify further reduction on sentence.  They knew full well their own family circumstances before they committed the crimes.  Had there been any mischief by reason of imprisonment, they brought the consequences to their head. 

Conclusion

22.  Having considered all the matters including the aggravating features, I adopted the respective starting points of 30 months, 33 months, 30 months for Charges 1 to 3.  I also adopted the starting point of 3 weeks for charge 4.  I give the usual one third discount for their guilty pleas making the sentence be one of 20 months, 22 months, 20 months and 2 weeks’ imprisonment respectively.  For easy reference, please see the table below:

	Charge 1	Charge 2	Charge 3	Charge 4
D1	20m	22m	20m
D2	20m	22m	20m	2 weeks
D3		22m	20m

23.  By reason of the principle of totality, I should give a meaningful discount on total sentence so as to avoid lengthy sentence.  As a result, I order as follows:

(i) regarding D1, sentences for Charge 1 be made concurrent with Charge 3 but consecutive to Charge 2, making a total of 42 months’ imprisonment for D1;

(ii) regarding D2, sentences for Charges 1, 3 and 4 be made concurrent with each other but consecutive to Charge 2, making a total of 42 months’ imprisonment for D2;

(iii) regarding D3, 6 months for Charge 2 be made concurrent with Charge 3, making a total of 36 months’ imprisonment for D3.