HKSAR v. EGINA SAMSON SAMSON

DCCC 218/2023

[2024] HKDC 558

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 218 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant was convicted after trial of one count of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

FACTS

2.  The defendant was found guilty for stealing Mr Wong’s (PW1)  Rolex watch valued at HK$105,000 outside No 72 Kimberley Road, Tsim Sha Tsui, together with another male unknown.

3.  The case happened in the small hours of 19 November 2022. After having some drinks with friends, PW1 seated on the stair steps of a restaurant on Kimberley Road to have a brief rest.  PW1 had his Rolex watch worn on his left wrist.  Defendant together with an unknown male approached PW1. Defendant pulled PW1’s left wrist forcefully and stole PW1’s Rolex watch.  The defendant and the unknown male then started to run.  PW1 immediately gave chase.

4.  Defendant was subsequently arrested by a nearby plainclothes police officer. The accomplice of the defendant ran away without being caught.  The Rolex watch was not found.

CRIMINAL CONVICTION RECORD

5.  The defendant has three criminal conviction records.  The first in 2019 for an offence of conspiracy to steal credit cards and he was sentenced to 12 months’ imprisonment.  The second in 2022 for an offence of theft and he was sentenced to 4 weeks’ imprisonment.  The third in 2023 for an offence of attempted robbery (DCCC 371/2022)  and he was sentenced to 3 years and 9 months’ imprisonment, a sentence which he is currently serving.

MITIGATION

6.  The defendant is now 28 years old.  He is a Tanzanian.  His mother passed away when he was 7 years old.  His father is now in his seventies.  He has one sister who is a single mother of two children.  The family of defendant are all living in Tanzania.

7.  The defendant has been educated to Form 4 level.  The defendant has never been employed in Tanzania.

8.  The defendant is a Form 8 holder. He came to Hong Kong in September 2017 and has been on ISS assistance.

9.  It was agreed by the defence that the facts and the modus operandi used by the defendant to commission the offence in the present case are similar to both the facts and modus operandi used in the case of DCCC 371/2022, which the defendant was last convicted in August 2023. The defendant was D2 in that proceeding.  In DCCC 371/2022, a starting point of 3 years and 3 months was adopted after D1 and D2 had both been convicted after trial.  It was submitted by the defence that, given the facts of the present case and modus operandi used are similar to the case of DCCC 371/2022, a starting point of 3 years and 3 months should also be an appropriate starting point for the present case.

10.  It was accepted by the defence that there are aggravating factors present in this case, namely:

(a)  The offence was committed by 2 people – The defence submitted that an enhancement of 3 months is appropriate as this was a two men theft (HKSAR v Singh Sukhdeep DCCC 516/2022).

(b)  The defendant is a Form 8 holder and has repeatedly reoffended – The defence submitted that an enhancement of 6 months is adequate considering the defendant’s status as a Form 8 holder and that he has repeatedly reoffended (HKSAR v Sandagdorj Altankhuyag and Another [2014] 1 HKC 206, HKSAR v Galvis Sila Paola Andrea HCMA 274/2020 and HKSAR v Butt Muhammad Gulzar [2020] 3 HKLRD 805).

(c)  The defendant committed the present offence whilst on bail for another offence – The defence submitted that an enhancement of 6 months is appropriate and that it be served as a partly consecutive sentence (HKSAR v Yim Wai Ling, William CACC 35/2004, HKSAR v Leung Ting-fung and Anor [2015] 1 HKC 290, HKSAR v Wong Yun-fat [2017] 4 HKLRD 59).

11.  When sentencing the defendant, the defence invited the court to allow part of the sentence of the present case to run concurrently with the sentence he is already serving (HKSAR v Dinh Khac Nhat HCMA 251/2001).

SENTENCE

12.  In the present case, the value of the Rolex watch being stolen is HK$105,000 and it could not be found.

13.  It was submitted by the defence that the starting point for the present offence should be 3 years and 3 months which is the same as it was in the case of DCCC 371/2022.  In DCCC 371/2022, 6 months were enhanced for the aggravating factors, being D1 and D2 are Form 8 holders and the offence was committed jointly by 2 persons, making a total of 3 years and 9 months’ imprisonment, the sentence which the defendant is now serving.

14.  I note that the offence the defendant being charged in the present case and that of in DCCC 371/2022 are different.  The offence of the present case is theft whilst in DCCC 371/2022, it was attempted robbery.  The maximum sentence for the offence of theft is 10 years’ imprisonment upon indictment whilst for the latter is imprisonment for life upon indictment. I also note that the value of the Rolex watch in the present case was HK$105,000 and it could not be found whilst in DCCC 371/2022, the Rolex watch was HK$85,800 and the victim did not suffer any loss.

15.  In this premises, I accept the defence submission and adopt a starting point of 3 years and 3 months’ imprisonment for the present case.

16.  I accept the defence submission, which has correctly pointed out, there are three aggravating factors in the present case: the offence was committed jointly by 2 people; the defendant is a Form 8 holder who has repeatedly reoffended and the defendant committed the present offence whilst on bail for another offence.

17.  I have considered that these three aggravating factors are not double counted.  Having in mind of the starting point, for each aggravating factor, I enhance 3 months for the sentence, i.e. a total enhancement of 9 months’ imprisonment.

18.  The sentence for the present case is therefore 4 years’ imprisonment.

TOTALITY

19.  The defendant is now serving the sentence of DCCC 371/2022.  Having considered the totality principle, I order the sentence of 2 years’ imprisonment of the present case to run concurrently and 2 years’ imprisonment of the present case to run consecutively with the sentence of DCCC 371/2022.