HKSAR v. NGUYEN ANH CUONG

CACC 414/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 414 OF 2011

(ON APPEAL FROM DCCC 54 of 2011)

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J U D G M E N T

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Hon Macrae J (giving the judgment of the Court):

1.  The applicant faced trial before HH Judge Tallentire in the District Court on five charges of conspiracy to steal (Charges 1 to 5), contrary to section 9 of the Theft Ordinance, Cap 210 and sections 159A  and 159C of the Crimes Ordinance, Cap 200.

2.  He was also charged in the same charge sheet with remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong (Charge 8), and the further offence of breach of a deportation order (Charge 9), contrary to sections 38(1)(b) and 43(1)(a) respectively of the Immigration Ordinance, Cap 115.

3.  The applicant originally pleaded guilty to Charges 8 and 9 but not guilty to Charges 1 to 5. The pleas of not guilty were entered on the basis that he had conspired to steal only with D4 (who pleaded guilty at the outset) but not with D1 and D2 (who originally pleaded not guilty).

4.  This was a rather surprising course for the defence to take and explains why, when the applicant ultimately pleaded guilty to the charges as framed at the close of the prosecution case, the judge considered that he should have done so at the outset; and why the judge accorded him a full one third discount for what were otherwise late pleas. 

5.  It might, however, be observed that the pleas of guilty to Charges 1 to 5 came after submissions of no case to answer had been made on behalf of the applicant and that his original contention that D1 and D2 were not involved in the conspiracies was demonstrated to be false when they themselves capitulated and pleaded guilty after similar submissions of no case to answer had failed; and when the applicant pleaded guilty to charges which particularised their involvement.

6.  In those circumstances, we consider that the one third discount which the judge gave to the applicant for his late pleas of guilty was generous.  The applicant could not have complained if he had received the rather lower discount which was in fact accorded to D1 and D2.

7.  Charges 1 to 5 are concerned with five separate conspiracies to steal garments from a number of stores on three different days in November 2010.  At about 17:45 hours  on 2 November 2010, the applicant together with D1, D2 and D4 were observed by police leaving residential premises in Castle Peak Road, Yuen Long.  The applicant was carrying a black bag which had been internally modified with an additional lining of tinfoil so that the anti-theft security devices on any stolen items would not activate the stores’ alarm systems.  The four defendants entered the H&M store in Central at 18:25 hours, where three of the defendants including the applicant were captured on the store’s CCTV system.  All four defendants returned to the address in Yuen Long at 19:55 hours (Charge 1). 

8.  On the following day, 3 November 2010 at 18:00 hours, the police saw the applicant together with the other three defendants leave the premises in Yuen Long again.  The applicant was carrying the same modified black bag.  At about 18:45 hours, the four entered the H&M store at Elements in Austin Road West, Kowloon.  D1 left the shop shortly thereafter: the applicant and the other defendants, at about 19:15 hours (Charge 2). 

9.  Thirty-five minutes later on the same day, the applicant, D2 and D4 entered the H&M store in Canton Road, Tsimshatsui. The applicant was still carrying the same black bag and he was again captured on the store’s CCTV system.  They left that store at 20:15 hours and returned to the address in Yuen Long (Charge 3).

10.  At about 18:10 hours on 8 November 2010, police saw D1, D2 and D4 leave the premises in Yuen Long for the Yuen Long West Railway Station.  On the train, they were joined by the applicant who was carrying the same black bag that he had carried on earlier occasions. At 19:15 hours, the applicant, D2 and D4 entered the H&M store in Festival Walk, Kowloon Tong.  They left in a taxi at about 19:40 hours (Charge 4). 

11.  At about 20:05 hours the same day, the applicant, D2 and D4 entered the H&M store in Canton Road, Tsimshatsui again.  The applicant was still carrying the same black bag.  Ten minutes later, they left and returned to Yuen Long (Charge 5).

12.  Later that night, the police went to the address in Yuen Long, which had evidently been kept under observation, and demanded entry.  However, their demand was ignored.  Shortly afterwards, they saw the applicant and D4 climbing down the outside of the building, and items of clothing being simultaneously jettisoned from the premises.  The applicant and D4 were arrested and taken back to the premises. A search of the premises revealed, amongst other things, rolls of tinfoil and adhesive tape, notebooks and containers full of garments, some with their anti-theft devices still attached.  Thrown out of the premises was the modified black bag which had all times been carried by the applicant, three other similarly modified bags as well as numerous garments and accessories.  A total of 819 garments and 9 accessories were recovered by the police from inside and outside the premises, of which 406 items were later confirmed to be stolen; as were the 9 accessories.  The status of the other items could not be determined.

13.  What is clear from a recital of those facts is that the applicant was a participating member of a highly organised, sophisticated and successful gang of thieves operating in Hong Kong.  For that reason, application was made to the judge by the prosecution for the sentences on Charges 1 to 5 to be enhanced in accordance with the provisions of section 27(11) of the Organized and Serious Crimes Ordinance, Cap 455 (OSCO).  Realistically, counsel for the applicant and for the other defendants felt unable to, and did not, oppose the application. Accordingly, the judge acceded to the application and assessed the enhancement of sentence under OSCO at one third.

14.  Upon his arrest, it was discovered that the applicant was an illegal immigrant who had breached a deportation order requiring him to leave Hong Kong on 14 March 2001.  This led to the further charges of remaining in Hong Kong without the authority of the Director of Immigration (Charge 8) and breach of a deportation order (Charge 9). 

15.  The judge considered a starting point of 3 years imprisonment appropriate for each of the conspiracy to steal charges (Charges 1 to 5), which he discounted by a full one third to 2 years (or 24 months) imprisonment.  Given that he was dealing with five distinct charges, he ordered that 9 months of the sentence on Charge 2 should run consecutively to the 24 months imprisonment imposed on the other charges, with the remaining 15 months to run concurrently; thus arriving at a total sentence for the conspiracy to steal charges of 33 months imprisonment.  He then enhanced the sentences under OSCO by one third to arrive at an overall sentence for those offences of 44 months imprisonment. 

16.  On Charge 8, the judge imposed the standard sentence of 15 months imprisonment.  In relation to Charge 9, he observed that this was the fourth time that the applicant had breached the deportation order, for which he had demonstrated “an alarming level of persistence”.  He took a starting point for this charge of 30 months imprisonment, which he reduced by one third to 20 months for the plea of guilty.  He then ordered the two sentences in respect of Charges 8 and 9 to run concurrently with each other but consecutively to the sentences on Charges 1 to 5, making an overall total sentence of 64 months imprisonment.  It is against that sentence that the applicant now appeals.

17.  We say at once that the overall sentence of 44 months imprisonment, duly (and appropriately) enhanced in respect of the five conspiracy to steal charges, was in no way manifestly excessive.  Indeed, we would not have interfered in the circumstances of this systematic and highly organised gang of professional shop thieves with a sentence of at least 4 years imprisonment.  It is worth observing that the English Court of Appeal has recently held in R v Cyril Edward Page & Ors [2005] 2 Cr App R (S) 37 (at para. 2):

“Nothing we say is intended to affect the level of sentence appropriate for shoplifting by organised gangs. When this occurs repeatedly or on a large scale, sentences of the order of 4 years may well be appropriate, even on a plea of guilty.”

18.  Nor could the applicant have complained if, for the reasons we have already adverted to, the judge had discounted the sentence by only 25% on account of his late pleas.  Although the applicant might have received a slightly higher sentence for these offences, the ultimate sentence of 33 months imprisonment duly enhanced under OSCO to 44 months was unobjectionable for five separate conspiracies to steal.

19.  However, what causes us particular disquiet in this case is the fact that this is the fourth time that the applicant, a native of Vietnam, has breached his deportation order.  He first breached the order in 2004 when he was found unlawfully in Hong Kong in possession of a forged Hong Kong Identity Card.  He breached it a second time in 2005 when again found unlawfully in Hong Kong, at which time he was arrested for going equipped for stealing.  His third breach of the order was in 2008 when yet again he was found unlawfully in Hong Kong and was arrested for theft.  This is the fourth time he has breached the order and the third time he has appeared before the courts for breaching the order in conjunction with an offence of dishonestly. It is not difficult to see that the applicant has not merely displayed a persistent contempt for Hong Kong’s immigration laws but that an incident of his coming here, if not his underlining purpose, has been to steal.

20.  The judge was plainly right to take a starting point higher than that taken for the applicant’s three previous breaches of the deportation order.  Given that this is the fourth time he has deliberately defied the order, we would not have interfered with a substantially higher starting point. 

21.  It should be remembered that the maximum sentence for breaching such an order under section 43(1)(a)(i) of the Immigration Ordinance is 7 years imprisonment on indictment.  The applicant must understand that if he unlawfully enters Hong Kong again in defiance of the deportation order, a starting point well in excess of 3 years imprisonment for this offence alone is likely to be adopted.

22.  There is no merit whatsoever in this appeal. The applicant may consider himself fortunate that he was not dealt with even more severely.  We would not, on these facts and in the circumstances of his late pleas to Charges 1 to 5, have interfered with an overall sentence of at least 6 years imprisonment.  Defendants who come to Hong Kong illegally, particularly in persistent defiance of an order to keep them out, and who then commit serious organised crime when they are here, can expect no mercy from the courts. 

23.  The application is dismissed.