HKSAR v. GONZALEZ ARIAS EDUIN AND ANOTHER

HCCC 5/2019

[2019] HKCFI 1434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 5 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

Both defendants pleaded guilty to one count of theft and another count of criminal damage on 7 January 2018 at Eastern Magistrates’ Courts. They were committed to the Court of First Instance for sentence.

Shortly past 11 am on 26 March 2018, the defendants and another man were outside Treasure Jewellery Limited at Ground Floor, Duke Wellington House, No 16, Wellington Street, Hong Kong. D2 and the other man used hammers to break the glass showcases of that shop. D1 snatched the jewellery from the showcase. One of the staff heard the bang sound and went out to check. One of the man waved him to go inside the shop. Other staff of the shop saw the theft through the CCTV but were too frightened to interfere. The three men then fled.

Police officers conducted a search in the vicinity. They spotted D1 acting suspiciously in Graham Street. When the police approached D1, he ran away. The officers subsequently subdued D1 at Jubilee Street after a chase. 10 pieces of jewellery were found in D1’s trousers pocket.

In a subsequent video-recorded interview, D1 admitted that he was one of the man caught in the CCTV. He took the jewellery from the showcase. He and the others came from Colombia with a plan to commit robberies in Hong Kong as he had financial problems. They would share the crime proceeds.

Meanwhile, at about 6 pm on the same day, D2 was arrested at the Shenzhen Bay Control Point where he tried to leave Hong Kong. During the video-recorded interview, D2 admitted that he was one of the men caught in the CCTV. He came to Hong Kong from Colombia with others to make some money as he was poor. They targeted that shop because the vicinity was quiet. He and D1 visited the shop separately before the offence. They bought hammers two days prior to the offence. He intended to flee to Guangzhou after the incident.

Immigration record reveals that D1 and D2 entered Hong Kong on 15 March 2018. On 26 March 2018, they went to Sheung Wan by MTR shortly before the incident. CCTV footages from various sources reveal that they walked passed Wing Lok Street en route to that shop.

According to the police, the cost value of the jewellery stolen was about $21.9 million. The cost value of the jewellery recovered was about $12.4 million.

There are aggravating factors in this case as follows:

(a) D1 and D2 came from Colombia with a plan to commit crime.

(b) They had planned in detail for the offence. They picked a shop at a quiet area. They made a reconnaissance trip to the shop a few days before the offence. They bought hammers two days before the offence.

(c) The total cost value of the jewellery stolen was about 21.9 million. About 12.4 million worth of jewellery was recovered. The actual loss to the shop was about 9.5 million.

(d) They were armed with hammers which were potent weapons capable of causing serious injuries. Staff of the shop were threatened indirectly with violence. One of the staff was waived back to the shop, others were frightened off on witnessing the incident on the CCTV. Though the conduct of the defendant is technically theft, it does not fall far short of an armed robbery. Had there been any resistance or interference, I am sure that the defendants would resort to violence.

This is a very serious offence. It strikes at the heart of public security in Hong Kong. A strong deterrent sentence is indicated.

In coming to the right starting point, I bear in mind the principle in HKSAR v Mo Kwong Sang, CACC 359/1981. The Court of Appeal stated that the appropriate sentence in an ordinary case of armed robbery where the accused was carrying a knife or other dangerous weapon which he displayed to his victim should normally be 5 years.

I have also considered the other sentencing authorities submitted by both parties. They include The Queen v Leung Wing Fu, CACC 362/1981, The Queen v Law Wai Ming, CACC 1001/1979, HKSAR v Cheng Xiangrong and another, CACC 42/2016 and also HCCC 255/2014. In my view, they are not of much assistance.

Having considered the circumstances of this case, I take a starting point of 6 years’ imprisonment for the theft charge. I increase the starting point to 8 years’ imprisonment in view of the aggravating factors. I see no distinction in their roles. Each of them should receive the same sentence.

For D1, he is 39. He had education up to secondary level. He worked in a printing company in Colombia, earning about US$300 per month. He is married with an adult daughter. He has a clear record in Hong Kong.

Mr Richmond submits that D1 intended to go to China for business. The decision to commit the offence was very much opportunistic. It was a decision after they saw the displayed items at the shop. While D1 had a 12-inch hammer with him, he never intended to pose any threat. In his letter, D1 shows remorse. He worries about his family and pleads for leniency.

I do not accept that the decision to commit this present offence is an opportunistic one. It is totally contrary to what D1 said in his video-recorded interview.

I take the starting point of 8 years’ imprisonment for the theft charge. I deduct 32 months for his plea. I sentence D1 to 5 years and 4 months for the theft charge. For the 2nd charge of criminal damage, I take a starting point of 2 years’ imprisonment. I give 8 months for his plea. I sentence him to 16 months’ imprisonment.

The two charges are part and parcel of the same incident. I order the sentences to run concurrently. D1 has to serve a total of 5 years and 4 months’ imprisonment.

For D2, he is 45. He is divorced with two sons. He had secondary education. He worked in the same company as D1, earning about US$200 to US$300 per month. He has a clear record in Hong Kong. Mr Parry submits that the present case is not an armed robbery. There was no injury to anyone, no threat to the staffs of the shop.

In his letter to this court, D2 shows remorse and apologizes to the people of Hong Kong. I take the starting point of 8 years’ imprisonment for the theft charge. I deduct 32 months for his plea. I sentence D2 to 5 years and 4 months for the theft. For the 2nd charge of criminal damage, I take a starting point of 2 years’ imprisonment. I give 8 months for his plea. I sentence him to 16 months’ imprisonment.

The two charges are part and parcel of the same incident. I order the sentences to run concurrently. D2 has to serve a total of 5 years and 4 months’ imprisonment.