HKSAR v. AGUILAR VILLANUEVA WILLIAN RAFAEL

CACC 485/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 485 OF 2012

(ON APPEAL FROM DCCC 863/2012)

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court):

1.  By a notice of application for leave to appeal, filed with the court on 10 July 2013, the applicant sought leave to appeal out of time against sentences of imprisonment imposed upon him by District Court Judge Dufton on 8 November 2012, following his pleas of guilty to five charges of theft, contrary to section 9 of the Theft Ordinance, Cap. 210. The total sentence of imprisonment imposed on the applicant was 3 years. The five offences were committed in the nine-day period on and between 4 and 12 July 2012.

The Charges

2.  The applicant was charged jointly with his co-accused Aguilar Garcia Milner Javier in all five charges.  Each of them pleaded guilty to all those charges.

Leave to appeal against sentence out of time

3.  In affirmations filed with the court the applicant sought to explain why his application for leave to appeal out of time was filed with the court on 10 July 2013, some 8 months after he had been sentenced.  He said that following sentence he had relied upon advice given to him by his solicitor that there were no reasonable grounds for appeal against sentence.  However, in mid-June 2013 he had been advised by a representative of the Consulate General of Peru not only that his co-accused had lodged an appeal against sentence but also that he had been successful, in that his total sentence of imprisonment had been reduced from 3 years’ imprisonment to 28 months’ imprisonment.  In those circumstances, he had filed his own notice of leave to appeal against sentence out of time.

4.  On 6 June 2013 this court differently constituted, Lunn JA and Beeson J, had allowed the application for leave to appeal against sentence of the applicant’s co-accused.[1]

The sentences

5.  The applicant, and his co-accused, was sentenced to 12 months’ imprisonment in respect of each charge.  6 months of the sentence of imprisonment imposed in respect of Charge 2 was ordered to be served consecutively to the sentence imposed in respect of Charge 1.  Similarly, 6 months of the sentence of imprisonment imposed in respect of each of the other charges was ordered to be served consecutively to the resulting sentences imposed in respect of the preceding charge.  Accordingly, the total sentence of imprisonment imposed upon each of the accused was 3 years.

THE FACTS

6.  The applicant and his fellow Peruvian co-accused were visitors to Hong Kong, permitted to stay 30 days only.  The thefts were of bags left unattended by their owners in restaurants or cafes.  In three of the charges the applicant and his co-accused were captured on CCTV as they left the places from which the thefts occurred.  An array of property was stolen, including passports, cash, cameras, an I-Pad and a variety of documents of identification and bank cards.  The total value was in excess of $30,000.  Only some of the property was recovered.  The unrecovered property included the passports of two of the victims.

7.  The applicant and his co-accused were intercepted by police officers on the 5^th Floor of Mirador Mansion in the evening of 12 July 2012.  Ten minutes earlier other officers had seen them acting furtively in Nathan Road and had observed the applicant passing a brown bag to his co-accused.  The applicant’s co-accused was found in possession of the brown bag which, together with its contents, was identified subsequently by its owner as having been removed from beneath a chair where he had placed it whilst he was having dinner in a restaurant in Harbour City earlier that evening (Charge 5).  The applicant admitted under caution that together with his co-accused he had stolen the bags lost by their owners in all five charges.  He said that he had committed the offences because he had no money.     

REASONS FOR SENTENCE

8.  In his Reasons for Sentence the judge said (paragraphs 11 and 12) :

“ Unlike pickpocketing there are no guidelines for this type of theft although they have been said to be similar in nature to the offence of pickpocketing (see for example HKSAR v Cortes Ramon Miguel HCMA 858/ 2011 and HKSAR v Tan Guixiang HCMA 1012/2006).

Sentences of between 9-18 months’ imprisonment after trial have been said to be appropriate for theft in circumstances similar to the present offences (also see HKSAR v Morales Alva, Adilio Victoriano HCMA 178/2007; HKSAR v Zhou Dingshu HCMA 96/2004 and HKSAR v Rang Zhi-tai & another HCMA 7/1999).”

9.  Of the fact that no fewer than five offences had been committed in a short time, the judge said :

“ Whilst each offence taken individually may be classified as an opportune theft, this was a series of thefts committed over a period of 9 days, showing a degree of premeditation on the part of the defendants. The defendants were clearly on the lookout for bags left unattended by their owners. Charges 4 and 5 were committed just over an hour apart on different sides of the harbour.”

10.  Noting that the first offence committed by the applicant had taken place 10 days after his arrival in Hong Kong, the judge said that he could not be satisfied that the applicant had come to Hong Kong to steal.

11.  Of the factors of aggravation in the commission of the offence, the judge said :

“ Albeit in a far more serious case the Court of Appeal said in HKSAR v Obiagwu Oluchukwu Christian CACC 307/2009 that the commission of robbery by visitors to Hong Kong can be regarded as an aggravating feature. I am satisfied this equally applies to the facts of the present case. There is a need to deter tourists who, having come to Hong Kong with insufficient funds or soon after run out of money, think that they can then steal.”

12.  The judge went on to say that he drew the inference that the applicant and his co-accused had acted together, the one taking the bag and the other acting as they look as they, “...preyed on victims who were in busy restaurants or shopping centres”.

Starting point

13.  The judge stated that he took a starting point for sentence after trial of 18 months’ imprisonment.

Discount

14.  For the pleas of guilty of both the applicant and his co-accused, the judge stated that he discounted the sentence taken as the starting point to 12 months’ imprisonment.

Totality

15.  In respect of the issue of totality of sentence, the judge said :

“ Although the offences form a series of acts over a relatively short period of time they are nevertheless separate and distinct thefts involving different victims. I am satisfied a total sentence of 3 years’ imprisonment properly reflects the criminality of the defendants on the five charges.”

16.  As noted earlier, the judge achieved that the totality of sentence by making 6 months of each of the charges consecutive to the preceding aggregated sentences.

GROUNDS OF APPEAL AGAINST SENTENCE

17.  In the grounds of appeal against sentence Mr Victor Lee submitted on behalf of the applicant that the inferred starting point of 4½ years’ imprisonment taken by the judge in sentencing the applicant and his co-accused was manifestly excessive.  Unsurprisingly, in support of that submission Mr Lee relied on the judgment of the court inHKSAR v Aguilar Garcia Milner Javier, in which case he appeared on behalf at this applicant’s co-accused.

A CONSIDERATION OF THE SUBMISSIONS

18.  As is apparent from the chronology of relevant events set out earlier in this judgment, the applicant filed his notice of leave to appeal out of time within 3-4 weeks of learning of the success of his co-accused’s appeal.

19.  In the judgment of this Court in respect of the applicant’s co-accused, the following circumstances were identified as having been correctly stipulated by the judge as relevant to the commission of the offences, namely that :[2]

(i)   the conduct of the defendants amounted to “preying on victims who were in busy restaurants or shopping centres”;

(ii)    there was a “degree of premeditation”, given the fact that the five offences were committed in a nine-day period in establishments of a similar nature;

(iii)   the defendants were visitors to Hong Kong, which was a factor of aggravation in the commission of the offence; and

(iv)   the commission of the offences by two men acting in combination was another factor of aggravation in the commission of the offence.

20.  We accept that those factors are apposite to the determination of the gravity of the offences.  Similarly, we note and accept the court’s determination of the error that the judge fell into in determining the appropriate totality of sentence and the stipulation of the appropriate sentence to be imposed :[3]

“ ..the judge fell into error in determining the appropriate totality of sentence to impose upon the applicant. As he suggested (counsel for the co-accused), it is to be inferred that, in sentencing the applicant to a total of 3 years’ (imprisonment) following his pleas of guilty, the judge would have sentenced the applicant to 4½ years’ imprisonment after a trial of the five charges. Viewed from that angle, we are satisfied that the total sentence of 3 years’ imprisonment imposed on the applicant was manifestly excessive. In our judgment, a total sentence of 28 months’ imprisonment reflected the applicant’s culpability appropriate.”

Conclusion

21.  In the result, having regard to the circumstances in which the applicant came to give notice of his application for leave to appeal against sentence out of time, and having regard to the merits of the substantive application, we grant the application.  Treating the hearing of the application as the hearing of the appeal, we allow the appeal and quash the orders made by the judge made that 6 months’ imprisonment of the sentences imposed in respect of Charges 2 to 5 be served consecutively to the sentences to be served in respect of the other charges.  In their place we order that :

4 months of the sentence of imprisonment imposed in respect of Charge 2 be served consecutively to the sentence of 12 months’ imprisonment imposed in respect of Charge 1;

4 months of the sentence of imprisonment imposed in respect of Charge 3 be served consecutively to the resulting sentences of imprisonment imposed in respect of Charges 1 and 2;

4 months of the sentence of imprisonment imposed in respect of charge 4 be served consecutively to the resulting sentences of imprisonment imposed in respect of Charges 1, 2 and 3; and

4 months of the sentence of imprisonment imposed in respect of Charge 5 be served consecutively to the resulting sentences of imprisonment imposed in respect of Charges 1, 2, 3 and 4.

22.  Accordingly, the total sentence of imprisonment imposed upon the applicant is 28 months.     

[1] HKSAR v Aguilar Garcia Milner Javier (CACC 485/2012; unreported, 11 June 2013).

[2]HKSAR v Aguilar Garcia Milner Javier, paragraphs 16-22.

[3] HKSAR v Aguilar Garcia Milner Javier, paragraph 22.