HKSAR v. ZAINUDIN (also known as HENDRI ZAINAL ABIDIN, ZAINAL ABIDIN HENDRI and HADI CANDRA)

DCCC 345/2018

[2018] HKDC 1072

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 345 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of “theft”, contrary to section 9 of the Theft Ordinance, Cap. 210 (charge 1), one count of “attempted theft”, contrary to section 9 of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200 (charge 2) and six counts of “breach of deportation order”, contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115 (charges 3-8).

Charge 1

2.  On 6 September 2017, Mr. Chen was at a male toilet situated at 3^rd Floor, Prince’s Building in Central (“the Washroom”).  He placed his briefcase above his luggage and paid no heed to his belongings.  Soon he found that his briefcase was missing.  His briefcase contained the items particularized in charge 1, including cash of USD50,000, HKD8,000 and RMB1,300. 

3.  The CCTV captured the defendant, together with 2 males, entering the Washroom without any briefcase and subsequently leaving the Washroom about 1 minute later with one of them having a briefcase in his hand and followed by the defendant.  When the defendant left Prince’s Building, he was holding a briefcase.

4.  In subsequent cautioned interview, the defendant admitted that he went to a shopping mall in Central together with 2 males.  One of them took Mr. Chen’s briefcase and handed the same to him near a lift.  They then left in different directions and met again at Sham Shui Po later.  The defendant was given USD1,000 and was promised to receive USD9,000 upon his return to Indonesia. However, at the time of the interview, the defendant had not received the outstanding sum.

Charge 2

5.  On 12 December 2017, Mr. Lau withdrew some cash at a Hang Seng Bank branch situated at Lee Gardens Two, Causeway Bay.  He then put USD1,500 into a plastic zipper and placed the same into his backpack.  When he was at the junction of Yun Ping Road and Kai Chiu Road, Causeway Bay, he heard some zipper-opening noise from his backpack.  He immediately turned around and saw a South Asian male behind him.  Mr. Lau grabbed the male’s arm and a struggle ensued.  He saw the male drop his plastic bag containing the cash onto the ground.  The male immediately escaped.  Mr. Lau suffered no loss.  The case was then reported to the police.

6.  The CCTV captured the defendant waiting at the lobby area while Mr. Lau was waiting in the queue to withdraw money in the bank.  After withdrawing money, Mr. Lau went to another level of the shopping mall and the defendant followed.  When the parties were captured walking along Yun Ping Road, Mr. Lau’s backpack was being opened and 4 males including the defendant were behind him.  When a male was trying to take items away from Mr. Lau’s backpack, the Defendant was near that male.

7.  In a subsequent cautioned interview, the defendant admitted he knew the other 4 Indonesia males who planned to steal in Causeway Bay on 12 December 2017.  He acted as a lookout. 

Charges 3-8

8.  A Deportation Order was served on the defendant on 23 October 2014.  According to the movement records of the defendant, he entered and/or left Hong Kong on various dates as detailed in the Summary of Facts.  Thus, he was in contravention of the said Deportation Order when he entered Hong Kong on 9 February, 30 March, 28 April, 6 July, 26 August and 30 November 2017.

9.  Under caution, the defendant admitted that he was subject to a Deportation Order, that he had 3 Indonesian passports and used these passports to enter Hong Kong in 2013, September 2017 and November 2017 respectively. 

Mitigation

10.  The defendant is aged 39 and was born in Indonesia.  He is married with 4 children.  His wife and children live in Indonesia.  His wife is suffering from breast cancer.  Both his parents are aged over 70.  Prior to the present case, he worked as construction worker or hawker in Indonesia.  He is the sole breadwinner of the family.  The defendant has one previous conviction record for the offence of pickpocketing in 2014.

11.  In mitigation, it was submitted that the sentencing guideline for the offence of pickpocketing was applicable to charges 1-2, the usual starting point being 12-15 months’ imprisonment.  It was conceded that certain aggravating factors were present, namely, the offence was committed in public area, there was some kind of arrangement with other unknown persons and the amount of property stolen in the first charge was high.

12.  As far as the breaches of deportation order are concerned, this court was referred to the case of HKSAR v Joned Asri, CACC 345/2012 and the reasons for sentence in HKSAR v Delante Antonio Jr Arana, DCCC 59/2016 and HKSAR v Chaudhry Mohammad Aslam, DCCC 703/2017.  It was submitted that the breaches took place in a period of 10 months and the court was urged not to apply strictly the guidelines as set out in Joned Asri.  Given the defendant’s guilty plea, the court was urged to impose lenient sentences on the defendant. 

Sentence

13.  The offence of theft in charge 1 is akin to pickpocketing.  The offence in charge 2 is an attempt to pickpocket. 

14.  The Court of Appeal has in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 laid down the sentencing guidelines for the offence of pickpocketing.  The usual starting point for a first offender should be in the range of 12 to 15 months’ imprisonment.  The starting point will be adjusted in the presence of aggravating features such as the use of weapon, that the offence was committed in crowded places, that the offence was committed by more than one person and the accused is a repeated offender.

15.  In respect of charge 1, taking into consideration the circumstance of the offence including the value of property stolen, I consider the appropriate starting point to be 15 months’ imprisonment.  As the offence was committed by the defendant together with 2 other persons, the sentence is to be enhanced by 3 months for this aggravating feature.  The sentence is reduced by 1/3 to 12 months for the defendant’s plea. 

16.  Regarding charge 2, I consider the appropriate starting point to be 15 months’ imprisonment.  Given the offence was committed by the defendant with 4 other persons, the sentence is to be enhanced by 3 months for this aggravating feature.  The sentence is reduced to 12 months for the guilty plea.

17.  For the offence of breach of deportation order, according to Joned Asri, given the multiple breaches, the defendant should be regarded as a repeated offender save in relation to the first breach, the subject matter of charge 3. His return to Hong Kong on other occasions under different identities after he was departed shows his clear intention to evade detection by the authorities. In this case, I see no reason to depart from the guidelines set out in the case of Joned Asri. 

18.  Adopting the approach in the case of Joned Asri, the starting point for charges 3-8 are respectively as follows:

(i) Charge 3: 27 months’ imprisonment

(ii) Charges 4 and 5: 30 months’ imprisonment for each charge

(iii) Charge 6: 36 months’ imprisonment

(iv) Charges 7 and 8: 42 months’ imprisonment for each charge

19.  Given the defendant’s plea, the sentence for each of charges 3-8 is reduced by 1/3 as follows:

(i) Charge 3: 18 months’ imprisonment

(ii) Charges 4 and 5: 20 months’ imprisonment for each charge

(iii) Charge 6: 24 months’ imprisonment

(iv) Charges 7 and 8: 28 months’ imprisonment for each charge

20.  Family hardship is generally not a mitigating factor.  Apart from the defendant’s guilty plea, there is no other valid mitigating factor justifying further reduction of sentence. 

21.  Taking into consideration the totality principle, I consider a total sentence of 41 months’ imprisonment is sufficient to reflect the criminality of the defendant’s acts.  I therefore order 3 months of the sentence for charge 2 to run consecutive to charge 1, that the sentences for charges 3-5 to run concurrently and the combined sentence for charges 3-5 to run consecutive to charges 1-2, that the sentences for charges 6-7 to run concurrently with 3 months of the combined sentence to run consecutive to charges 1-5, and that 3 months of the sentence for charge 8 to run consecutive to the sentences for charges 1-7, making a total sentence of 41 months.  The defendant is hereby sentenced to 41 months’ imprisonment.