HKSAR v. USMAN KURNIAWAN AND OTHERS

DCCC 194/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 194 OF 2015

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Reasons for Sentence
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1. There are three defendants, they are all from Indonesia. They have all pleaded guilty to one joint charge of theft. The 2nd defendant alone has pleaded guilty to five further charges of breach of a deportation order. The facts have been agreed, and I have convicted the defendants accordingly.

2. The facts of the theft charge show that it was a joint offence of theft committed on 18 December 2014.  The defendants had entered the Jardine Center at 50 Jardine’s Bazaar at Causeway Bay, taken a lift to the 2nd floor, where there is a Japanese restaurant.  The 1st and 2nd defendants had entered the restaurant.  The 3rd defendant had been in the restaurant briefly, and then remained outside.

3. Inside the restaurant, the 1st defendant moved a rucksack from under PW1’s seat towards him with his arm and leg while the 2nd defendant kept watch.  

4. The 1st defendant took off and left the restaurant carrying the rucksack, followed by the 2nd defendant.  The defendants attempted to leave by way of a staircase but were unable to do so.  They then attempted to leave by using the lift and they were stopped.

5. The victim, PW1, said they could go if they returned the money to him, and the 2nd defendant took out a white envelop from his trousers pocket and handed it to PW1.  This contained 1 million Japanese yen, which I believe is about HK$60,000-odd.  The defendants were eventually arrested. 

6. The 1st defendant made admissions.  He said that they had planned to steal together, that he was responsible for stealing, the 2nd defendant was responsible for keeping the property, and the 3rd defendant responsible for keeping a watch.

7. As far as the breach of deportation order is concerned, a deportation order was served on the 2nd defendant on 7 December 1994 under the name of Ari Sanjaya.  He had entered Hong Kong a further five times under the name of Sondi Nudin, that’s on 8 February 2011, 6 June 2011, 3 July 2011, 18 April 2014 and 13 December 2014, and the defendant were arrested in 18 December 2014 with the other defendants.

8. The defendants’ antecedents have been admitted. The 1st defendant is a person of clear record from Indonesia.  He is aged 26 years old, he was a driver in Indonesia and lived with his family there.  He is married and has two children aged three and five months old. 

9. The 2nd defendant is now aged 44.  He is married.  Again, an Indonesian passport holder.  Works as a second hand car agent in Indonesia.  He has two daughters aged eight and seven.  He has one previous conviction in Hong Kong, and that was back in 1994 when for a similar offence of theft he was sentenced to 9 months’ imprisonment, and it was after that, in February 1995 that he was served with a deportation order. 

10. The 3rd defendant is aged 40.  He is an Indonesian national living with his family in Indonesia.  He also is of clear record in Hong Kong.  Worked as a road construction labourer in Indonesia, he is married with four sons and a daughter, ages ranging between four and fourteen years old.

11. The defendants have offered a mitigation on the basis that they had met in Macau where they had been gambling, and had gone for a meal in the restaurant in Causeway Bay, and it was when they were in the restaurant that they had decided to commit this offence of theft.

12. As far as sentencing is concerned, all defendants have pleaded guilty to the theft offence, so it forms a joint enterprise between them to steal the rucksack with the cash of a million Japanese yen in it.  This is an offence akin to pickpocketing, and for offences of that nature, a starting point of between 12 to 15 months’ imprisonment is appropriate.  This is a more serious form of the offence of theft given the value of the items found inside the rucksack, and clearly the defendants were targeting items of value.  

13. As far as this offence is concerned, in respect of each defendant I will adopt a starting point at 15 months’ imprisonment. There is an aggravating factor in the commission of this offence, it is the fact that the defendants have acted in concert to do this.  This increases the actual starting point for sentence to one 18 months’ imprisonment. 

14. I note the 2nd defendant has a previous conviction, but it dates back to 1994, and is of such antiquity that it will not be an aggravating factor in respect of this offence.

15. All defendants have pleaded guilty to this offence.  They are entitled to the benefit of one-third discount, so the sentence for the 1st, 2nd and 3rd defendants in respect of the 1st charge will be one of 12 months’ imprisonment. 

16. The 2nd defendant is also involved in five further offences, a breach of deportation order.  Those are Charges 2 through to 6, and these involve five entries into Hong Kong in the years of 2011 and 2014.  The defendant said in mitigation that because of the fact that the deportation order dated back to 1995, he had, in fact, forgotten of the existence of this order.  I find that to be unlikely given that he had obtained or assumed a different identity from the one that he previously had entered Hong Kong, and his earlier identity was discovered by a fingerprinting process.

17. In respect of these offences, a starting point for sentence can range between 27 to 42 months’ imprisonment.  I will adopt the following starting points for these offences, and of course, in respect of each of those, there will be a one-third discount for the plea of guilty.

18. On Charge 2, the starting point is 27 months’ imprisonment, after plea of guilty, it is 18 months’ imprisonment, sentence of 18 months’ imprisonment.

19. On Charge 3, a sentence of 30 months’ imprisonment, after deduction of plea of guilty, that will be a sentence of 20 months’ imprisonment.

20. Similarly, on Charge 4, again a starting point of 30 months’ imprisonment reduced to 20 months’ imprisonment for plea of guilty..

21. On Charge 5, a starting point of 36 months’ imprisonment, reduced to 24 months’ imprisonment for the plea of guilty. 

22. On our Charge 6, a starting point of 42 months’ imprisonment, reduced to.28 months for the defendant’s plea of guilty.

23. Having regard to the question of totality, I will order that the sentences on Charges 2 through to 6 be served concurrently to one another.  That is a total of 28 months for those five offences. 

24. The defendant has, of course, committed the 1st offence as well, and that sentence is eligible to be served consecutively.  And I will so order that Charges 2 through to 6 be served consecutively to Charge 1.  That gives an overall sentence for the 2nd defendant of 40 months’ imprisonment, whereas the sentence for the 1st and 3rd defendants is one of 12 months’ imprisonment.