HKSAR v. TOMMY WINATA (also known as ANDY TAN, Andy Tan and ISMET) AND ANOTHER

DCCC 587/2018

[2018] HKDC 1549

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 587 OF 2018

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Reasons for Sentence

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1.  This case concerns two Indonesian nationals who came to Hong Kong to commit acts of theft by way of pickpocketing while they were both in breach of deportation orders.

2.  The 1st defendant faces a charge of attempted theft and then a joint charge of theft with the 2nd defendant, then a further six offences of breach of a deportation order.  The 2nd defendant faces a charge of theft on his own and then a joint charge with the 1st defendant, and then a further two offences of breach of a deportation order.

3.  The 1st charge on the indictment relates to the 1st defendant, that is the offence of attempted theft which took place on 22 March of 2014.  The victim in Sha Tin Plaza was carrying a rucksack which had a wallet inside.  The victim felt someone pulling her rucksack and was able to identify the defendant as the person doing it and was able for him to be intercepted by a security guard.  Later, the defendant admitted that he saw the rucksack was open and wanted to take the wallet out of greed.  He was released on bail to court but left Hong Kong under an Indonesian passport in the name of Ismet.

4.  The 2nd charge relates to an offence committed on 3 March 2018 by the 2nd defendant.  This involved a lady who had withdrawn cash, 80,000 in total, from the Hang Seng Bank in a shopping arcade in Tseung Kwan O.  She put the cash in the wallet into her rucksack.  From CCTV footage she can be seen to be followed by a number of what were described as South Asian males which included the 2nd defendant.  The action that was performed by them was at the door to the shopping mall where one of the South Asians males blocked her way.  While that was going on, the 2nd defendant took the wallet from the rucksack.  The defendant was interviewed about this particular offence.  He said he had taken about $70,000 from the bag by pickpocketing.

5.  The third offence of theft involves the 1st and 2nd defendants acting together.  A few days later, on 7 March 2018, a lady had taken a sum of $150,000 in cash from her bank in Sham Shui Po, of which she retained some $41,000 and putting that into her rucksack.  On CCTV footage she was then seen to be followed by the 1st and 2nd defendants.  She went down to the MTR station at Lai Chi Kok followed by both defendants and it would appear that either on her way down or on the -- at some point her rucksack was unzipped and the money and wallet was taken.  The 1st defendant admitted his involvement in this and said the 2nd defendant took the money.  The 2nd defendant also admitted he stole the money when he was with the 1st defendant.

6.  Following their arrests it was discovered that both defendants were in breach of deportation orders.  The 1st defendant had originally been deported in the name of ANDY TAN.  He appears to have obtained passports in two further identities as Tommy Winata and Ismet, and under those identities he completed a further six entries and exits from Hong Kong and which formed the six charges of breach of a deportation order.

7.  The 2nd defendant was also the subject of a deportation order.  He had a passport in the name of Dodi Ginanjar but apparently his real name is Indra Irawan.  But in any event he used this other identity to enter/leave Hong Kong on two occasions and they form the charge that he faces.

8.  As far as the antecedents are concerned, the 1st defendant is aged 34.  He is described as married and has said to have a daughter of 6 and a 2 year old son.  He appears to have had another child whilst he has been in Hong Kong.  He has a previous conviction for the same offence of theft in 2012 and was sentenced to 6 months’ imprisonment.

9.  The 2nd defendant is aged 39.  He is married and has three children, two sons and a daughter.  He also has a previous conviction for theft, which is described as theft pickpocket, on 13 February 2014 for which he was sentenced to 16 months’ imprisonment.

10.  The 1st defendant in mitigation said there are some extenuating circumstances, particularly in relation to his children who he says have been abandoned by their mother and are presently living with his parents.

11.  The 2nd defendant was the sole breadwinner and had worked intermittently as a taxi driver in Indonesia.  He had a large number of expenses and was not meeting them and had come to Hong Kong in the past and been in prison.  He says his mother was very seriously ill with gangrene in her legs.  He was prepared to join a syndicate that was coming to Hong Kong to participate in illegal activities.  Both defendants, and particularly the 2nd defendant, are very frank in their admissions.

12.  Turning to the question of sentencing.  The level of sentencing is determined by authority.  As far as the thefts and attempted thefts are concerned, they are all pickpocket type thefts.  The Court of Appeal has laid down guidelines in HKSAR v Ngo Van Huy [2005] 2 HKLRD for the offence of pickpocketing.  The usual starting point, this for a first offender for an offence of pickpocketing, is within the range of 12 to 15 months’ imprisonment.  That starting point can be adjusted in the presence of aggravating features such as, though it is irrelevant in this case, would be a repeat offender, committed in a crowded place, committed by more than one person.  In fact it has been said that where it involves a syndicated case, even where there are no international ramifications, starting points can range as high as 2½ years’ imprisonment, which is 30 months.

13.  As far as the breach of deportation orders are concerned, the relevant case is HKSAR v Joned Asri CACC 345 of 2012 which deals with cases of multiple breaches of deportation order.  That sets out the normal starting points for those cases.  The normal starting point for a first offence range up to 27 months’ imprisonment and then increasing up to a starting point of 42 months’ imprisonment, but it is said that once that level of 42 months is reached the sentence will not increase beyond that, described as a levelling off of the sentence.  That will be relevant to the 1st defendant’s sentencing where there are six different offences, which means that he will benefit from the levelling off feature.

14.  Turning to the individual defendant’s sentences.  The 1st defendant faces two charges of - well, a charge of attempted theft and a charge of theft.  The first offence of attempted theft is committed in Sha Tin Plaza which is the place to which he probably had resort to.  The defendant himself is a repeat offender and also, on analysis, had come to Hong Kong to commit offences of that nature.  By my calculation, that would lead to a starting point on the 1st charge of 21 months’ imprisonment. That is adopting a starting point of 12 months and then adding the three aggravating factors leads to a sentence of 21 months’ imprisonment.  The defendant has indicated a plea of guilty from an early stage so he is entitled to a full discount of one-third, which leads to a sentence of 14 months’ imprisonment on that 1st charge.

15.  He also faces the 3rd charge jointly with the 2nd defendant.  Again, there are a number of aggravating factors here.  This is an offence in a crowded place, an MTR station.  Offences committed by more than one person is a joint crime.  The defendant is a repeat offender and the defendant has come here to Hong Kong to commit the offence.  Also, the offence itself is more serious, involving the theft of a substantial amount of money.  Actually, the starting point should be one of 15 months to which the aggravating factors would be added.  I could take 30 months’ imprisonment but I will in fact take the starting point of 27 months’ imprisonment for this offence.  After deduction for plea of guilty, that would lead to a sentence of 18 months’ imprisonment on the 3rd charge for the 1st defendant.

16.  In respect of the Charges 4 through to 9, I will take the recommended sentences as presented by the case of Joned Asri and adopt the starting points as recommended in that case.  After deduction for plea of guilty, the sentences on these charges will be as follows: on Charge 4, 18 months; Charge 5, 20 months; Charge 6, 20 months; Charge 7, 24 months; Charge 8, 28 months; and Charge 9, 28 months.  As far as these offences are concerned, added together they would lead to a considerable length of imprisonment so I must consider to what extent they should be served consecutively or concurrently, and that means arriving at a proper overall total.  I do bear in mind the mitigation made as to the defendant’s circumstances, the difficulty of his home situation, although not in my view amounting to a humanitarian reason for reducing sentence.  They do present a compelling problem of poverty in Indonesia but the answer to that cannot be for a person to come to Hong Kong and commit offences in a syndicate, and so the overall total must involve an element of deterrence in this case.

17.  I have decided for the 1st defendant the overall total should be one of 46 months’ imprisonment.  I will achieve this as follows: I will order that the 1st and 3rd offences be served concurrently to a total of 18 months’ imprisonment and the 4th through to the 9th offences also be served concurrently to each other, giving a total of 28 months’ imprisonment.  But the 1st and 3rd offences should be consecutively to 4 through to 9 giving a total of 46 months’ imprisonment.

18.  Now I will turn to the 2nd defendant.  The first offence of theft to be considered is the 2nd offence in this indictment and that is the offence committed against the lady in the shopping arcade in Hang Hau.  Again, this involves a substantial sum of money so the starting point initially to this offence should be one of 15 months’ imprisonment to which the aggravating factor should be added.  Again, the defendant is a repeat offender, it is a crowded place and more than one person is involved in the commission of the offence, and the defendant has come from overseas to commit these offences.  I will adopt a starting point of 27 months’ imprisonment and reduce it to 18 months for the defendant’s plea of guilty.

19.  The second charge he faces is Charge 3, which was committed together with the 1st defendant.  The sentence for the 2nd defendant should equal that of the 1st defendant.  I consider the same aggravating factors are present.  So the starting point would be one of 27 months reduced to 18 months for the plea of guilty.

20.  As far as the breach of deportation order is concerned, there are two offences.  Adopting the sentencing principles that are set out in Joned Asri and after deduction of the sentence for the plea of guilty, this would lead to the following sentences: on Charge 10 a sentence of 18 months’ imprisonment and on Charge 11 a sentence of 20 months’ imprisonment.

21.  Again, for this defendant one has to arrive at a proper overall total.  I do of course bear in mind his home situation which is also very difficult, but the same warning must be given to this defendant, that it does not provide mitigation when you join a syndicate and come to Hong Kong to commit offences.  I consider the overall proper total sentence for this defendant should be one of 36 months’ imprisonment.  I shall order that as follows.  I will order the 2nd and 3rd offences to be served concurrently to each other and the 10th and 11th offences to be served concurrently to each other, and I am going to order 16 months of the 2nd and 3rd offences to be served consecutively to the 10th and 11th offences, which gives an overall total of 36 months’ imprisonment.

22.  Those will be the sentences imposed.