HKSAR v. IRSANDI (ALSO KNOWN AS SIDIK)

DCCC 1084/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1084 OF 2014

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Reasons for Sentence

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1. The defendant has pleaded guilty to two offences: firstly, breach of a deportation order, and secondly, an attempted theft.

2. The facts can be shortly stated.  The defendant attempted to steal on 1 November 2014.  The victim had obtained $222,000 in cash in Sham Shui Po.  He put the cash into the pouch of his rucksack and went to Mong Kok by MTR.  He had then gone on to the escalator at Mong Kok Station, and felt weight on the rucksack at his back.  The weight was the defendant attempting to steal from the rucksack.  He had unzipped it and put his arm into the middle pouch of the victim’s rucksack.  He was ultimately unsuccessful.

3. He was arrested and subsequently interviewed. He said he had seen the victim putting a lot of money into the rucksack in Sham Shui Po and decided to steal from him, followed him, unzipped his rucksack, and put his arm in to steal whilst on the escalator.

4. It was found from the Immigration Department the defendant was subject to a deportation order for life which is dated 20 September 2012, under a different name.

5. The defendant’s antecedents have been put into court.  He has one conviction for an attempted theft by way of pickpocketing on 23 December 2011, for which he received 14 months’ imprisonment.

6. He was unemployed at the time, and had primary school education in Indonesia.

7. He was deported from Hong Kong on 3 October 2012.

8. Miss Liu has mitigated extensively on behalf of the defendant, giving me some personal information not in the antecedents statement.  He is currently married, has two sons, aged 17 and 13, who are students, and four daughters.  He has worked as a merchant trading grain.

9. It is admitted that he entered Hong Kong on 30 October 2014.  He is aware he was subject to a deportation order.  He had come to buy cheap clothes to sell them in Indonesia for profit and had brought some money with him.

10. He had seen the victim putting cash into a pouch in his rucksack and decided to steal the money from the rucksack.

11. As far as the sentencing is concerned, I must take into account the defendant’s plea of guilty and the mitigation advanced. It is pointed out that although there is an international element, the defendant’s intention in coming to Hong Kong was to buy clothes; that although he had attempted to steal money in a public transport area, he was not taking advantage of a particularly crowded area, and he had acted momentarily out of greed and was not part of an organised gang, and did not exhibit professional pickpocket skills; that no weapon or tool was used; and that the victim had suffered no loss.

12. Turning to the calculation of sentence of these cases, in respect of the 1st charge, this is the defendant’s first offence in respect of breach of a deportation order, and I rely on the authority in the case of HKSAR v Guan Cuizhen [2012] HKCA 29, where it was stated that in reviewing sentences for the offence of breaching a deportation order, reference is made to the case of HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762, where it was concluded that the sentence of 18 months’ imprisonment for a first breach of deportation order was appropriate, that being the sentence after, as I understand it, a deduction for a plea of guilty.

13. This is the defendant’s first offence for breach of deportation order.  I see no particular reason to depart from that sentence in respect of this offence, so in respect of the first offence, after deduction for plea of guilty, the sentence on the defendant will be one of 18 months’ imprisonment.

14. Turning to the second offence, the defendant is convicted of attempted theft.  The Court of Appeal has laid down sentencing guidelines for these offences in the case of HKSAR v Ngo Van Huy CACC 107/2004, where the court considered the appropriate starting point for sentence and any aggravating factors which would increase that starting point.

15. The guideline sentence for this offence is 12 to 15 months’ imprisonment after trial is appropriate for a first‑time offender, but then that sentence can be aggravated having regard to a number of aggravating factors.

16. In this case, the aggravating factors would appear to be as follows:  firstly, that the offence occurred in a public transport hub, being the escalator at Mong Kok Station; secondly, there is an international element in that the defendant has come here to commit the offence; and thirdly, he does have a previous conviction for the same offence, which shows the failure of that previous sentence of imprisonment to deter the defendant from committing a further offence of that nature.

17. In respect of each of those aggravating factors I will assign an additional 3 months’ imprisonment.  So in respect of this case, I take into account the amount of money was substantial, in the sum of cash of $220,000 that he put into the pouch of the rucksack, so I consider that a starting point of 15 months’ imprisonment is appropriate, and that sentence will be enhanced by the three aggravating factors by a further 9 months’ imprisonment, giving a starting point for sentence of 24 months’ imprisonment for this offence.  The defendant has pleaded guilty, so the sentence will therefore be reduced to 16 months’ imprisonment, having regard to his plea of guilty.

18. Of course, the offences have been committed in respect of different dates, so they allow them to be served consecutively.  In determining to what extent the sentences should be served consecutively, I have regard to the overall totality for sentence.  What I shall do is order that 6 months of the sentence on the 2nd charge be served consecutively to the second on the 1st charge.

19. This will give a total sentence of 24 months’ imprisonment.