HKSAR v. HARDIAN ALSO KNOWN AS SUKMA

CACC 323/2015

CRIMINAL APPEAL NO 323 OF 2015

(ON APPEAL FROM DCCC 614/2015)

____________

____________

_________________________

REASONS FOR JUDGMENT
_________________________

Hon Pang JA (giving the reasons for judgment of the court):

1.  On 31 August 2015, the applicant (D3) and his co-accused (D1 and D2) pleaded guilty to one joint charge of ‘theft’ (Charge 1). On his own, D1 also pleaded guilty a charge of ‘breach of deportation order’ (Charge 2). The applicant and his co-accused were sentenced to the following terms of imprisonment by the trial judge (Deputy Judge Marco Li):

D1 – Charge 1: 22 months; Charge 2: 18 months (eight months of which to run currently with the sentence on Charge 1)

D2 – Charge 1: 20 months

The applicant – Charge 1: 20 months

The applicant applied for leave to appeal against sentence.

THE FACTS

2.  The Summary of Facts on which the applicant and his co‑accused pleaded guilty reads as follows:

“1^st Charge

Mr. Shen Yu (‘PWI’) came to Hong Kong from the Mainland on 28 May 2015 at round noon time. He went to Tsim Shai Tsui for lunch with his friend. He and his friend then went to Central for banking services. In Central, he withdrew cash of USD 100,000 from a HSBC branch and kept it in the outside compartment of his black rucksack (‘the Rucksack’). He left from the HSBC branch at around 4:00 p.m.

2. At around 5:00 p.m., PWI went to K-11 Shopping Centre in Tsim Sha Tsui for snacks with his friend. They left at around 7:00 p.m. and proceeded to take MTR at Tsim Sha Tsui East Station. After going through the MTR turnstile, PWI and his friend took the escalator down to the train platform. PWI had a silver suitcase (‘the Suitcase’) on which he placed the Rucksack. PW1 did not notice anything out of the ordinary until he was stopped by a plainclothes police officer WPC 55946 (‘PW2’). He was asked to check if anything was missing. He found the zipper of the Rucksack had been opened; a white cap with letters ‘NYC’ (‘the Cap’), a blue long sleeves windbreaker (‘the Windbreaker’) and the cash of USD 100,000 in two brown envelopes (‘the Envelopes’) (‘the Items’) were missing from the Rucksack.

3. PW2 and other police officers, all in plainclothes, where conducting anti-crime patrol in Tsim Sha Tsui at the material time. At about 7:22 p.m., PW2 noticed D1-D3 near K11 Shopping Centre at Exit N4 of Tsim Sha Tsui East MTR Station. D1-D3 were walking three abreast, looking nervous and talking to each other. D3 then pointed at PW1 and his friend. D1 and D2 walked behind PW1 and paid attention to PW1’s hand on the Suitcase. PW1 was pulling the Suitcase with the Rucksack on it while D1-D3 were about 1-2 metres behind PW1. PW2 kept D1-D3 and PW1 under observation and alerted other police officers to join her.

4. At about 7:28 p.m., PW1 and his friend went through the MTR turnstile to enter Tsim Sha Tsui East MTR station. D1-D3 followed them . PW1 and his friend went onto escalator ZE4 to go down to the train platform. PW1 kept his left hand on the Suitcase with the Rucksack on it which was on a step behind him. D1 stood to the left of the Suitcase, D2 stood behind D1, and D3 stood to the right of D2. PW2 stood behind D2 and D3.

5. Shortly afterwards, D3 leaned forward and used his right hand to steady the Rucksack that was on top of the Suitcase; D2 raised his own briefcase with his left hand to block the view, while D1 used his right hand to zip open the Rucksack. After the Rucksack was unzipped, D3 removed his hand quickly while D1 put his right hand into the Rucksack and took out the Cap and the Windbreaker. D1 passed the Cap and the Windbreaker to his left hand, then he put his right hand into the Rucksack again and took out the Envelopes.

6. PW2 immediately informed her colleagues. While other police officers went after D1-D3, PW2 stopped PW1. She revealed her police identity and asked PW1 to check if anything was missing.

7. At about 7:30 p.m., PC 5317 (‘PW3’) stopped and arrested D1 for ‘Theft’. At about 10:42 p.m., at Tsim Sha Tsui Police Station, D1 in the presence of an Indonesian interpreter, admitted under caution that he and D2-D3 has stolen the Items at the material time.

8. At about 7:30 p.m., PC 15625 (‘PW4’) stopped and arrested D2 for ‘Theft’. At about 11:01 p.m., at Tsim Sha Tsui Police Station, D2 in the presence of an Indonesian interpreter, admitted under caution that he had blocked the view to assist the others to steal.

9. At about 7:30 p.m., PC 8513 (‘PW5’) stopped and arrested D3 for ‘Theft’. At about 12:27 a.m. on the next day, i.e. 29 May 2015, at Tsim Sha Tsui Police Station, D3 in the presence of an Indonesian interpreter, admitted under caution that he and D1-D2 had stolen the Items at the material time.

2^nd Charge

10. Investigation reveals that a Deportation order dated 13 June 2011 was issued against D1. Under caution in the presence of an Indonesian interpreter, D1 admitted that he was in breach of a Deportation order.

11. D1-D3 arrived in Hong Kong on 25,22 and 20 May 2015 respectively.”

GUIDELINE & MITIGATION

3.  Insofar as it concerns such sentencing guideline as was available, and the personal circumstances of the applicant, the judge stated thus in his Reasons for Sentence:

“5. In mitigation, Mr Yiu [D1’s solicitor] asks the court to be as lenient as possible. He fairly concedes that the guideline in HKSAR v Ngo Van-Huy [2005] 2 HKLRD 1 is appropriate, which means 2.5 years should be adopted by this court as the starting point [for Charge 1] ….

….

7. Mr Pang also represents [the applicant]. Again he adopts the contents in [the applicant’s] antecedent statement, with minor amendments to the parts in relation to [the applicant’s] health, employment and family. Mr Pang asks the court to ignore [the applicant’s] prior conviction in sentencing, as it is a shoplifting that happened long time, ie more than 20 years ago. The biggest mitigating factor in this case is of course [the applicant’s] plea of guilty.

8. Solicitors for the defendants have said all that could possibly be said in mitigation, to which I am grateful. Before sentencing I have carefully considered all the circumstances of the case.

9. D1 is no stranger to the court system.  Most important of all, he has a prior similar record, which is pickpocketing.  In this regard, he deserves less sympathy than the other defendants ….”

SENTENCE

4.  In the end, noting that “the starting point for Charge 1 is 2.5 years (30 months) imprisonment” (see paragraph 10 of the Reasons for Sentence), the judge sentenced the applicant and his co-accused to their respective sentences.

GROUND OF APPEAL

5.  In a note attached to his Notice of Application for Leave to Appeal against Sentence (Form XI) dated 24 September 2015, the applicant stated in English:

“I WANT HIGH COURT REDUCE MY SENTENCE. BECAUSE HAVE CHILDREN AND I AM NEVER GET NEWS FROM THEM. HERE I AM TO MANY THINKING ABOUT I HOPE SO.”

THE HEARING OF THE APPLICATION

6.  Before me, the applicant confirmed the meaning of what he said in the above-mentioned note to be: (a) there had been no communication from home since his incarceration; (b) he missed and thought about his family in Indonesia all the time; and (c) he hoped the Court would show leniency and reduce his sentence.  He said he was an old man and, if he was allowed a reduction in sentence, he would never return to Hong Kong nor would he commit an offence ever again.

A CONSIDERATION OF THE MERITS

7.  At 57, the applicant was far from the age when age would become a mitigating factor.  Before committing the offence, the applicant should have realised that if caught, he would cause suffering to both he and his family.  It was something to be expected and does not weigh in his favour in this application.  

8.  Turning to the actual sentence, it is a regret that the judge did not condescend to explain his reasons in greater detail but given the following factors, I am satisfied that 20 months’ imprisonment is a proper sentence in the present case:

(a) The case of Ngo Van-Huy did lay down a 12 to 15-month starting point for sentence for pickpocketing.

(b) A number of well recognised aggravating features can be identified in the present case: (i) the applicant was a second-time offender; (ii) the offence was a concerted effort, professionally executed; (iii) the offence was perpetrated in a crowded public place; (iv) the applicant and his co-accused had obviously travelled to Hong Kong for the purpose of committing this and other offences; and (v) amongst the stolen properties was a huge amount of US currency. Accumulatively, these factors would, with no difficulty, enhance the starting point of sentence to one of 30 months.

(c) The applicant was duly given his benefit of a guilty plea, ie a one‑third discount from the 30-month starting point.

9.  Clearly, this is not a proper case to grant leave.

DISPOSAL

10.  For the above reasons, the applicant’s application was refused.  He was warned, through an Indonesian interpreter, of the power of the Court of Appeal under section 83W of the Criminal Procedure Ordinance, Cap 221 should he seek to renew his application.