HKSAR v. ARMANI GILBERTO also known as TRISNA DWIKI

DCCC723/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 723 OF 2012

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Reasons for Sentence

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1.  Defendant has pleaded guilty to four charges, the first three being theft, contrary to section 9 of the Theft Ordinance, Cap.210. The 4th charge is a breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap.115.

2.  The facts of the case are as follows.  The defendant is subject to a deportation order issued in February 2005.  He was last expelled from Hong Kong in July 2011.  For the second time, the defendant entered Hong Kong on 16 March this year under a different name. Despite him using an alias, he was again in breach of the 2005 deportation order; hence, Charge 4.  After he arrived back in Hong Kong, he committed Charges 1, 2 and 3, being arrested in the course of committing Charge 3.

3.  Charge 1 was a theft committed on 10 May in the lift lobby of the Novotel Hotel in Kowloon.  The victim of that charge left her wallet in her luggage momentarily unattended at the lift lobby.  The hotel CCTV camera captured the defendant taking something from her luggage.  She then found her wallet missing from her luggage.  She lost cash, bank cards and other personal items.

4.  Charge 2 was committed on 5 July inside the lobby of the Imperial Hotel, Kowloon.  The victim placed her handbag behind her grandmother’s back, presumably for safekeeping, and momentarily left her bag and her grandmother unattended.  The hotel CCTV camera caught the defendant taking a wallet from her handbag.  In her wallet, she had substantial amount of cash, credit cards that were not recovered.

5.  As for Charge 3, the defendant was seen on 10 July in Mody Road, looking suspicious, and police officers put him under observation.  The police followed the defendant into a restaurant on the 2nd floor of the Peninsula Centre.  Inside the restaurant, a police officer saw the defendant take a handbag from a female customer in the restaurant who had placed it behind her in her seat.  The defendant left the restaurant, whereupon he was arrested.  In that handbag which in itself was a valuable bag were two mobile phones, a passport, valuables and a significant amount of cash.

6.  The defendant after his arrest co-operated with the police and admitted the 3rd charge as well as the charges committed earlier, Charges 1 and 2.

7.  The defendant is an Indonesian national and now 37 years old.  He has several convictions in Hong Kong, starting from the year 2004.  He has seven previous convictions, four of which involved offences of dishonesty and two previous convictions for breaching his deportation order.  In this case, this is the defendant’s third time he has breached his deportation order.

8.  I have heard mitigation on behalf of the defendant.  He has a family in Indonesia which includes two young children.  He has breached his deportation order in coming to Hong Kong in order to commit offences for financial reasons, but his income is insufficient to sustain his family and his wife’s medical expenses.  The defendant’s best mitigation is his plea of guilty today.  

9.  Where Charges 1 to 3 are concerned, I take into account the defendant obviously targeted victims in busy locations such as hotel lobbies and restaurants.  In places such as these, victims are distracted and their valuables which they think are safe become a target for persons such as the defendant.  The defendant’s actions and the facts of these charges are akin to pickpocketing, in my view.  Defendant is not an opportunistic thief. He is acting professionally.  These offences deserve immediate custodial sentences.

10.  Where a breach of deportation order is concerned, a first offender would face a starting point of 18 months’ imprisonment, and I refer myself to two authorities: HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762 and HKSAR v Pham Van Tuan CACC272 of 2010.  As I have said here, this is not the defendant’s first breach but his third breach of a deportation order.

11.  Defendant, please stand up.  After considering the facts of the case, the seriousness of the offences, particular loss suffered by the victims, the defendant’s plea today and mitigation put forward, for each charge, 1, 2 and 3, I will take a starting point of 18 months’ imprisonment.  Defendant is entitled a discount of 6 month of each charge for his plea of guilty today.  Charges 1, 2 and 3, the defendant is sentenced to 12 months’ imprisonment.   

12.  For Charge 4, I will take, as it is his third breach, a starting point of 24 months.  The defendant is entitled to a discount of 8 months for his plea today.  Charge 4, the defendant is sentenced to 16 months’ imprisonment. 

13.  I have taken into account the totality principle and the time between each charge and the totally different nature of Charge 4 compared to the other charges.  For Charge 2, of the 12 months’ sentence, 3 months will be consecutive to Charge 1. Charge 3, of that 12 months, 3 months will also be consecutive to Charge 1.  For Charge 4, of that 16 months’ sentence, 6 months will be consecutive to Charge 1.

14.  In total, the defendant is sentenced to 2 years’ imprisonment.  Do you understand?

DEFENDANT: Understand.