HKSAR v. RIZKI PRATAMA

DCCC506/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 506 OF 2010

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Reasons for Sentence

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1.  The defendant has pleaded guilty to six charges.

2.  Charges 1, 3 and 5 are similar. The defendant has pleaded to breaches of a deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap.115.

3.  Charges 2, 4 and 6, the defendant has pleaded guilty to a theft charge, contrary to section 9 of the Theft Ordinance, Cap.210.

4.  In relation to Charges 1, 3 and 5, the defendant has breached a deportation order requiring him to leave Hong Kong on 2 May 1989 and prohibiting him from being in Hong Kong at any time thereafter.

5.  In this case, he has breached this deportation order and come back to Hong Kong illegally on three occasions: 15 December being the first occasion, 11 January being the second occasion, and 24 February being the third occasion.

6.  When he arrived on 15 December, he left on 11 January, only to return on the same day. He then left on 23 January, only to return on 24 February. He was then arrested on 17 March, having been in Hong Kong since his arrival back on 24 February. Since the date of 15 December 2009, he has been in Hong Kong for a substantial period of time.

7.  Charges 2, 4 and 6 - the theft charges - are on the facts serious offences.

8.  The victim of Charge 2 had exchanged some money in a money exchange shop and left the shop with RMB90,000 in a paper bag. She walked to her vehicle and put the bag on the front passenger seat. When she was about to drive away, she was deliberately distracted by one man, whilst a second male opened her passenger door and stole her money from the seat.

9.  CCTV film footage captured the defendant and other males following the victim from the money exchange shop to the car park.

10.  The victim of Charge 4 had withdrawn HK$400,000 from a bank in Kwun Tong. He was headed for lunch when a female approached him and told him he had ketchup on his shirt and bag, which he cleaned up. He clearly did not give anyone an opportunity to steal his bag of money. He proceeded to the restaurant, where he put his bag on the back of his chair and had it stolen within minutes.

11.  CCTV camera footage captured the defendant and other males following this victim into the bank, as well as later on at the restaurant.

12.  The victim of Charge 6 had withdrawn HK$300,000 from a bank in Telford Plaza. Not long after he had left the bank, he was approached by someone who told him that his shirt was dirty. He put his bag down on a flowerbed to clean his garment. He was then approached by another male, who told him he had dropped some money on the floor. He saw two $20 notes and bent to pick them up. At that moment, his bag was stolen by this defendant.

13.  A passer-by witnessed this crime and chased the defendant. The defendant was intercepted and the briefcase recovered.

14.  Ultimately the money of Charges 2 and 4 has not been recovered.

15.  The defendant has pleaded guilty today.

16.  He has one previous conviction for theft in 1989, where he was sentenced to 6 months’ imprisonment and then clearly deported.

17.  The defendant is an Indonesian national, married with four children, their ages ranging from 20 down to 10 years old. He also has to care for an elderly and sick mother.

18.  I have been told the defendant is a farm labourer in Indonesia with very little work and income. He has written a letter of mitigation explaining that his family live in poverty and he finds it difficult to feed and clothe them on a day-to-day basis.

19.  I have been told it is his desperate financial situation which caused him to commit these offences.

20.  I have also been told he came to Hong Kong to look for a sister who has been here for about five years, but he was unable to locate her.

21.  However, from the dates of these theft offences - December, January, March - I am more convinced the defendant came to Hong Kong to commit these offences. Moreover, these offences were not spur of the moment offences.

22.  The defendant’s best mitigation is his plea of guilty today.

23.  First I will deal with the breach of deportation order. This offence is a serious offence and punishment; an immediate custodial sentence is appropriate.

24.  In recent years sentences have markedly increased. I referred myself to the authority of HKSAR v Cortez Emily Bisoy [2002] HKLRD 762, where an 18 month sentence after a plea was upheld.

25.  I have also referred myself to the authority of HKSAR v Gabriel Malou Lantin, HCMA716/2004. In that authority, a starting point of 27 months for a first offender and 30 months for a second offence was held to be appropriate.

26.  In this case, I look at the reason why the defendant has breached the deportation order and I am sure he came to Hong Kong to commit these offences and enrich himself and others illegally.

27.  I turn to the theft offences. For offences of this nature, there are no guidelines.

28.  I consider the amount of money lost by the victims very relevant. The sums are significant.

29.  From the facts, it is clear the victims were followed and targeted after having withdrawn money or changed money.

30.  The defendant was not acting alone. There were other offenders involved and they were organised, preying on victims with substantial cash on their persons. This group were acting in concert, each member having pre-assigned roles.

31.  All these factors are very relevant to sentence and, in my view, aggravating.

32.  I have considered the defendant’s mitigation. I am sure he does have financial difficulty at home. However, his desperate circumstances were the reason he came to Hong Kong and they existed before he committed these offences. No mitigation I have heard today persuades me to be more lenient.

33.  After considering the facts of the case and the mitigation put forward, for Charges 1, 3 and 5, the deportation order offences, for Charge 1, I take a starting point of 2 years’ imprisonment; for Charge 3, I will take a starting point of 2 years and 6 months; for Charge 5, similarly I take a starting point of 2 years and 6 months.

34.  As for the theft offences, for Charge 2, I will take a starting point of 3 years’ imprisonment; Charge 4, I will take a starting point of 3 years and 6 months; Charge 6, similarly I take a starting point of 3 years and 6 months.

35.  The defendant is entitled to a discount of one-third for his plea.

36.  Defendant, please stand up.

37.  After considering the discount of one-third, for Charge 1, you are sentenced to 16 months’ imprisonment; for Charge 2, you are sentenced to 24 months’ imprisonment; Charge 3, you are sentenced to 20 months’ imprisonment; Charge 4, you are sentenced to 28 months’ imprisonment; Charge 5, you are sentenced to 20 months’ imprisonment; Charge 6, you are sentenced to 28 months’ imprisonment.

38.  I have considered the totality principle and the timeframe of these offences, and I will order that some of each sentence to be served consecutively and the balance concurrently.

39.  For Charge 2, the 24 months’ sentence imposed, 4 months of that will be served consecutively to Charge 1. Charge 1 is 16 months.

40.  For Charge 3, of the 20 months’ sentence imposed, 4 months will be ordered to be served consecutively to Charges 1 and 2.

41.  For Charge 4, 28 months’ sentence is imposed, of which 6 months will be ordered to be served consecutively to Charges 1, 2 and 3.

42.  For Charge 5, of the 20 months’ sentence imposed, 4 months will be ordered to be served consecutively to Charges 1, 2, 3 and 4.

43.  For Charge 6, of the 28 months’ sentence imposed, 6 months of that will be ordered to be served consecutively to Charges 1 through to 5.

44.  The balance of those sentences will be ordered to be served concurrently.

45.  The defendant is sentenced to a total of 40 months’ imprisonment; that is a sentence of 3 years and 4 months.

Court adjourns - 1.17 pm

Court resumes - 4.16 pm

Defendant present. Appearances as before.

46.  I must apologise to everybody.

47.  The sentence will remain the same. It will be a total of 3 years and 4 months, but how I reached that total sentence has caused some problems. Without going into details, Charge 1, being the lowest sentence of 16 months, and parts of other sentences being made consecutive to that, has caused calculation problems.

48.  How I reached that total sentence I will have to clarify again. In my view I am still functus to do this because I have not signed a certificate.

49.  I am going to explain to the defendant again how I have reached a sentence of 3 years and 4 months.

50.  I repeat: Charge 1, the defendant is sentenced to 16 months’ imprisonment; Charge 2, 24 months’ imprisonment; Charge 3, 20 months; Charge 4, 28 months; Charge 5, 20 months; Charge 6, 28 months.

51.  And I will repeat again to the defendant that in reaching this sentence I have already given you a discount of one-third for your plea.

52.  Now, I will also repeat that taking into account the totality principle, the timeframe of the offences and the nature of the six offences, I will make part of the sentences concurrent and part consecutive.

53.  Charges 1, 3, 5 and 6 will be ordered to be served concurrently.

54.  6 months of the 24 months of Charge 2 will run consecutively to Charges 1, 3, 5 and 6, the balance concurrently.

55.  6 months of the 28 months imposed for Charge 4 will also run consecutively to Charges 1, 2, 3, 5 and 6, and the balance concurrently.

56.  That means a total of 40 months; a 3 year and 4 month sentence.