HKSAR v. MEGRELISHVILI ANZOR

DCCC 1067/2018

[2019] HKDC 460

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1067 OF 2018

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REASONS FOR SENTENCE

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CHARGES

1.  The defendant pleads guilty to Charge 1, theft, and Charge 2, failing to surrender to custody without reasonable cause.

FACTS

Theft in 2007

2.  On 19 November 2007, the defendant and another male went to the victim company named in Charge 1, which was a diamond wholesale company.  The two pretended to be purchasers.  They finally chose four packets of diamonds containing 4,000 pieces, weighing a total of 866.39 carats.  The diamonds were worth about US$316,000, equivalent to about HK$2.46 million.

3.  The defendant gave an empty box to the seller, PW1, to store the diamonds.  He then sealed the box and gave it back to PW1.  The defendant put down US$2,500.  He said he would come back on the next day to settle the balance.  He then left with his accomplice.

4.  The defendant and his accomplice did not return.  PW1 unsealed the box and found that it only contained some crystalline powder.  A report was made to the police.

5.  CCTV footage showed the defendant had swapped the diamonds with the crystalline powder.

6.  PW1 circulated the defendant’s image to his business friends.

Arrest and jump bail in 2012

7.  Four odd years later, on 14 June 2012, the defendant was in Hong Kong again.  He went to the office of a business friend of PW1’s.  That friend informed PW1, who then called the police.

8.  The defendant was arrested.  He admitted under caution that he had been in Hong Kong in 2007 but he could not remember whether he had visited PW1’s company.

9.  The defendant was charged with theft on 9 August 2012.  He pleaded not guilty in the Kowloon City Magistracy.  The case number was KCCC 2387/2012.  The defendant was granted bail.  He was required to attend court again on 14 September 2012.  However, he left the territory on 8 September 2012 and returned to Israel.

Re-arrest in 2018

10.  Six years later, the defendant was re-arrested at the Hong Kong International Airport when he was about to leave Hong Kong on 11 October 2018.  It was found out he had entered Hong Kong on 21 September 2018.

11.  The defendant told the police that in 2012 he used his old Israeli passport to leave Hong Kong by train for Guangzhou, China.  From there, he flew to Israel.

RECORD

12.  The defendant was born in Russia in March 1942 but he has been living in Israel.  He has no previous record in Hong Kong.

MITIGATION

13.  Defence counsel points out that the defendant is 77 years old now.

14.  Defence counsel says the defendant had worked in the diamond industry, so he had the requisite knowledge.  Defence counsel also says the defendant has a big family with four children and 11 grandchildren.

15.  Defence counsel says the defendant’s health was not good.  Before he came to Hong Kong in 2007, he had already lost one kidney and the other was not functioning properly.  The defendant wanted to raise money for his medical bills and to have a kidney transplant in India.  He came to Hong Kong then, intending to do some watch trading.  The business failed to materialise so the defendant turned to illicit business and committed the theft in Charge 1.  However, even with the proceeds of the theft, the defendant failed to have a kidney transplant as he wanted because he was too old for that.

16.  Defence counsel says the defendant’s health thus deteriorated. Nevertheless, he came to Hong Kong again in 2012 intending to do watch trading.  He was then arrested by the police.

17.  Defence counsel says the defendant had a heart operation scheduled in Israel, so he jumped bail in 2012 to return to Israel for that operation.

18.  Defence counsel submits a medical report dated 25 June 2012 prepared by a doctor in Israel, Dr Ella, and another report dated 9 July 2012 prepared by a cardiologist, Dr Goh, in Hong Kong.  Both reports were obtained by the defendant in 2012 after he was arrested on 15 June that year.

19.  After he had been arrested in October 2018, the defendant was remanded in jail custody.  There is a medical report prepared by the prison doctor, Dr Tse, in late January 2019.  In that report, Dr Tse gave a brief account of the defendant’s condition.  He also mentioned that the defendant had been admitted to hospital between 13 and 25 October 2018.

20.  Defence counsel says the defendant is of age and is in very bad health. He asks the court to look closely at the defendant’s health before passing sentence.

21.  Upon Defence counsel’s request, I asked the Correctional Services Department (CSD) to prepare one more report regarding the defendant’s state of health to see if he would face undue hardship in prison here.

22.  Dr Tse of CSD submitted a further report dated 19 March 2019.  He said the defendant’s cardiovascular, respiratory and abdominal systems were unremarkable.  He had an implanted cardiac device.  The defendant had a history of hypertension, hyperlipidaemia, ischaemic heart disease and arrhythmia.  CSD had referred the defendant’s case to the Queen Elizabeth Hospital.

23.  In his further report, Dr Tse also mentioned three more episodes of hospital admission regarding the defendant:  7 - 11 February 2019 for chest infection, 3 - 12 March 2019, and 15 - 17 March 2019 for chest pain.  Defence counsel tells this court that the defendant was actually admitted to the Intensive Care Unit of the hospital for those nine days between 3 - 12 March 2019.

24.  In his further report, Dr Tse also mentioned that the defendant had suicidal ideation.  However, defence counsel says the defendant denied that assertion.  Defence counsel says it is possible that was due to communication breakdown because of the interpretation problem.  [The defendant also demonstrates in court that he has hearing problem.]

25.  Dr Tse stated that the defendant had been put under close observation and his medical problems were attended.  He commented that the defendant’s health condition remained stable.

26.  Defence counsel says, while Dr Tse’s further report mentioned nothing about the prognosis aspect, it confirmed the defendant is in poor health.  Defence counsel says the defendant would face real hardship in prison if he has to be incarcerated for a long period.

27.  Defence counsel asks this court to take into consideration that the defendant has been remanded in custody for five-odd months since he was arrested in October 2018.  He urges the court to be lenient towards the defendant, who is of age and has language barrier here.

28.  Defence counsel submits on two local cases:  HKSAR v Gonzaga & Ors, CACC 275/2011, and HKSAR v Lee Lei Lei, CACC 206/2016.  Both were related to stealing diamonds in jewellery exhibitions.

29.  Defence counsel says the Court of Appeal in the Gonzaga’s case upheld a starting point of 3 years’ imprisonment when the five defendants jointly stole one diamond worth about HK$250,000.

30.  Defence counsel also says the Court of Appeal in the Lee Lei Lei’s case upheld the same starting point of 36 months’ imprisonment for the theft of four pieces of jewellery valued at HK$795,000.

31.  Defence counsel also refers to an English case, Ashraf Ullah Khan (1994) 15 Cr App R (S) 320.  That case says serious health problems could constitute exceptional circumstances for passing suspended sentence.

SENTENCE

32.  The two local cases cited by Defence Counsel are not guideline cases. In the case of Lee Lei Lei, the Court of Appeal in paragraph 35 of the judgment merely said:-

“The range of starting points that he (referring to the sentencing judge) stipulated were within the range of appropriate sentences in his discretion”.

In the Gonzaga’s case, the Court of Appeal actually resentenced the defendant without recourse to the enhancement mechanism under the Organized and Serious Crimes Ordinance. It said in paragraphs 22 and 23:-

(22) The court was however entitled - indeed, duty bound - to give effect to features in aggravation of the offence of theft, though without recourse to the Organized and Serious Crimes Ordinance. The aggravating features were the international element and the fact that the offence was planned and committed by several persons.

(23) In our judgment, those aggravating features, in the context of a public exhibition of expensive jewellery, warranted in each case a sentence, prior to discount for mitigating features, of 4 years’ imprisonment.

33.  In the present case, the same aggravating features were present, namely there was an international element and the offence in Charge 1 was planned and committed by more than one person.  I do not accept the defence counsel’s saying that the defendant came to Hong Kong in 2007 to do proper watch trading but only turned to stealing diamonds later.  The facts reveal the stealing was committed in a planned and professional manner.  It was done with skill by the defendant and his accomplice.  I am sure the defendant came to Hong Kong on that occasion for that purpose, ie stealing diamonds.

34.  In the present case, the diamonds stolen were of much higher value.  The diamonds were worth about HK$2.46 million.  That was almost 10 times the value of the single diamond stolen in the Gonzaga’s case.  Furthermore, the diamonds stolen in Charge 1 had not been recovered.

35.  When the defendant committed Charge 1, he was 66.  According to what the defence counsel tells this court, the defendant was already not in good health at that time.  Yet he chose to come to Hong Kong to steal.  He then left the territory but was caught four-odd years later in June 2012 when he came again. He jumped bail.  He was caught only six-odd years later when he came to Hong Kong once again. 

36.  It has been more than 11 years since the defendant’s commission of Charge 1.  However, that is the defendant’s own making.  The police and the prosecution have not caused any delay.

37.  The defendant is now 77 years old.  He is not in good health.  He has a number of illnesses but they cannot be said to be critical.  As said, when the defendant committed Charge 1 eleven years ago, he was already not in good health.

38.  In light of the facts relating to Charge 1, the original starting point for sentence should be one of 5½ years’ imprisonment.

39.  However, the defendant is really in advanced age now.  He used to live overseas.  It can be anticipated there is some hardship for him to serve a long term of imprisonment here.  Nevertheless, CSD has already attended to his health situation and certainly would continue to do so.

40.  Due to the defendant’s old age now and his health condition, I am willing to reduce the starting point of Charge 1 by 6 months to one of 5 years’ imprisonment.

41.  As for Charge 2, defence counsel is saying that the defendant returned to Israel in 2012 for heart surgery, but that is no mitigation.  The defendant could have asked for leave from the court to go back to Israel for medical treatment.  He should also return to Hong Kong after the alleged operation to face justice here.  He chose not to.

42.  The defendant had absconded for six years.  He was only caught when he came back to Hong Kong again for reasons only known to himself.  When he was rearrested in October 2018, he was about to leave Hong Kong.

43.  The original starting point for Charge 2 should be 7½ months’ imprisonment.  Again, for the defendant’s old age and health problem, I am prepared to reduce that starting point to one of 6 months’ imprisonment.

44.  The defendant pleads guilty to Charge 1 and 2 in court at the earliest opportunity.  He is entitled to one-third discount.

45.  The adjusted starting point for Charge 1 is 5 years’ imprisonment. After one-third discount, the sentence upon the defendant’s plea is 40 months’ imprisonment.

46.  The adjusted starting point for Charge 2 is 6 months’ imprisonment. After one-third discount, the sentence on plea is 4 months’ imprisonment.

47.  Defence counsel has asked for a suspended sentence.  That cannot be done.  Firstly, the sentence imposed on Charge 1 after plea is one of 40 months’ imprisonment.  Such length of sentence cannot be suspended.  Secondly, there are no circumstances, including the defendant’s health situation, to justify or warrant suspension of any sentence imposed in Charge 1 or Charge 2.

48.  Charge 1 and Charge 2 are clearly separate and distinct offences.  The two terms of imprisonment should run consecutively.  That means the defendant has to serve a total of 44 months’ imprisonment for his commission of the two charges.