HKSAR v. NGUYEN THE CUONG AND OTHERS

DCCC54/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 54 OF 2011

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Reasons for Sentence

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1.  I make a general comment. You will appreciate that this has been somewhat complicated in view of the number of charges and the way in which the matter has evolved.

2.  D1, you originally pleaded not guilty to two charges of conspiracy to steal, each contrary to section 9 of the Theft Ordinance and sections 159A and C of the Crimes Ordinance, Cap.200, and you also denied one offence of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to sections 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap.455.

3.  D2, you pleaded not guilty to five charges of conspiracy to steal and not guilty also to one offence of dealing with property known or believed to represent proceeds of an indictable offence. Additionally, you denied one offence of possession of a forged ID card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap.177.

4.  D3, you pleaded not guilty to five offences of conspiracy to steal and guilty to one offence of remaining in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap.115, and guilty also to breach of a deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap.115.

5.  D4, you pleaded guilty to five offences of conspiracy to steal and guilty to one offence of remaining in Hong Kong without the authority of the Director of Immigration, contrary to section 38(1)(b) of the Immigration Ordinance, Cap.155, and guilty to one offence of breach of a deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap.115.

6.  You admitted the brief facts and I convicted you.

7.  D3, you had the facts regarding Charges 8 and 9 put to you and you were convicted on their admission.

8.  At the close of the prosecution case, Mr Cheng, on behalf of you, D1, on Charges 1, 2 and 6, and on behalf of you, D2, in respect of Charges 1 to 7, made submissions of no case to answer.

9.  Mr Yuen, on behalf of D3, made similar submissions on Charges 1 to 5.

10.  For reasons delivered and recorded in the court record, I found there was a case to answer in respect of each and every one of those charges.

11.  Thereafter, D3 applied to change his plea to one of guilty in respect of Charges 1 to 5, initially on the basis that he had conspired with D4; and D1 on Charges 1, 2 and 6; and D2 on Charges 1 to 6 made similar applications.

12.  D2 maintained her plea of not guilty in respect of Charge 7.  This was acceptable to the prosecution.

13.  I allowed the change of pleas and convicted each of the defendants on the prosecution case which had now closed.

14.  Charge 7 was left on file, not be to be proceeded with without leave of this court or the Court of Appeal.

15.  Briefly, the facts are as follows.

16.  There are seven H & M stores in Hong Kong selling clothes of the H & M and Divided brand.  The garments are protected by anti-theft security devices which are removed on payment.  If not removed, the alarm would be activated.  However, if they are placed in a container wrapped in tin foil, the alarm would not be activated.

Charge 1

17.  D1 and D2 resided at Flat D, 6th floor of Golden Hall Building, Castle Peak Road, Yuen Long.

18.  At about 1745 hours on 2 November 2010, police saw D1 to 4 leaving the building. D3 was carrying a black bag and
D4 a suitcase, both of which had been lined with tin foil.

19.  They went to the H & M store at Queen’s Road Central, entering there at about 1825 hours.  They returned to the flat at about 1955 hours.

20.  CCTV had captured D2 to D4 inside the shop.

Charge 2

21.  At about 1800 hours on 3 November last, police saw D1 to D4 leave the Golden Hall Building. D3 and D4 carried the same altered bags.

22.  At about 1845 hours, they entered the H & M store at Elements.  D1 left shortly thereafter; D2 to D4 at about 1915 hours.

Charge 3

23.  At about 1950 hours that same day, D2 to D4 entered the H & M store at Canton Road, Tsim Sha Tsui.  D3 and D4 still carried the same bags.  At about 2015 hours they left and returned to the building.

24.  CCTV had captured D3 inside the shop.

Charge 4

25.  At about 1810 hours on 8 November last, police saw D1, D2 and D4 leave the building and head for Yuen Long West Railway Station.  D4 carried a black suitcase.  D3, carrying the same bag as on previous occasions, joined them on the train.

26.  They went to Festival Walk.  D1 met a man and got the suitcase D4 was carrying.  He opened it and took out the other suitcase used previously, which he gave to D4.

27.  At about 1915 hours, D2, D3 and D4 entered the H & M store with the bags.  They left in a taxi from Festival Walk at about 1940 hours.

Charge 5

28.  At about 2005 hours, D2, D3 and D4 entered H & M at Canton Road, Tsim Sha Tsui.  This is Charge 5.

29.  D3 and D4 still had the bags.  10 minutes later, they left and returned to Yuen Long.

The arrest

30.  At about 2130 hours on 8 November last, police went to the flat and demanded entry.  At the same time, they observed a male and female climb from the flat and items being thrown from the flat.

31.  A few minutes later, police intercepted D3 and D4 as they were escaping from a restaurant at the ground floor.

32.  At about 2200 hours, D1 opened the door and let the police in.  D1, D2, and D2’s two daughters were in the flat; also the man seen with D1 at Festival Walk previously.  D3 and D4 were taken back to the flat.  D1 to D4 were arrested and cautioned.

33.  A search revealed, amongst other things, a suitcase, rolls of tin foils, rolls of adhesive tape, containers of garments, notebooks, and other garments in the shower tray and washing machines, some still with anti-theft devices attached.

34.  Thrown out of the flat were the altered bag and suitcase, three other altered bags, H & M garments and accessories, a nylon bag of garments, and keys.

35.  The garments and accessories were:

(i) 462 garments of H & M;

(ii) 28 garments of Divided;

(iii) 329 garments of other brands; and

(iv) 9 H & M accessories.

36.  Some of the H & M garments still had anti-theft devices attached.

37.  D1 and D2 denied the offences.

38.  D3, in a video recorded interview, admitted being an illegal immigrant (Charge 8) and stealing from H & M in Tsim Sha Tsui in November 2010, using the bag which he had altered.  He was asked to flee when the police came.

39.  D4, in a video recorded interview, admitted she was an illegal immigrant (Charge 10).  She met D3 on the street and he asked her to steal with him.  She stole about 10 garments from H & M at Tsim Sha Tsui. She also stole from H & M at Central and Tsim Sha Tsui with D3. The suitcase was altered by her and D3. She used the bag on 2, 3 and 8 November.

40.  364(392?) H & M garments, 9 accessories and 5 Divided garments were identified as stolen.  The status of the rest could not be confirmed.

41.  Both D3 and D4 were the subject of deportation orders (Charges 9 and 11).

42.  Various fingerprints were found on items.

43.  D1 admitted to 13 previous convictions on 12 occasions; D2 to 10 previous convictions on seven occasions; D3 to 13 previous convictions on five occasions; D4 to two previous convictions on one occasion.

44.  Miss Fung, for the prosecution, produced a copy of a notice served on each defendant under the provisions of the Organised and Serious Crimes Ordinance, Cap.455, seeking a determination of organised crime under section (b) of the definition.

45.  The position taken by defence counsel was either they did not wish to comment on this nor oppose it.

46.  The application related to each of the conspiracy charges.

47.  Miss Fung provided various sentencing authorities for my guidance.  These, I noted.  There was no comment made by either prosecution or defence.

48.  Mr Cheng entered mitigation on behalf of D1.  He told me he is 44 years of age and prior to arrest had been employed as a fish stall assistant earning some $10,000 per month.  Most of his family resided in Vietnam save for one sister in Hong Kong.

49.  He had pleaded guilty to two charges of conspiracy to steal and one of dealing with property the proceeds of an indictable offence.

50.  His prime mitigation was his plea of guilty which was conceded to have been not at the first available opportunity, being at the close of the prosecution case.  However, I was asked to note and give allowance for the manner in which the vast majority, indeed, effectively, the whole of the prosecution case, had been agreed.  Mr Cheng indicated he had no comment on the OSCO application.

51.  In respect of D2, he told me she was 41 years of age, the mother of two daughters aged 10 and 11, and living off welfare payments of $9,000 per month.  The girls were being cared for by friends.

52.  She had pleaded guilty to five offences of conspiracy to steal and guilty to one of dealing with property the proceeds of an indictable offence.

53.  He also made the point that she too had effectively admitted the whole of the prosecution case.

54.  He produced one sentencing authority, HKSAR v Aktas Alim & Another, DCCC1061/2009, where for conspiracy to steal involving a misuse of ATM machines yielding $87,000, I took as a starting point three years for each defendant.

55.  Mr Yuen mitigated on behalf of D3.

56.  First of all, he said he now wished to change the basis of the plea of guilty to involve D1 and D2 in the conspiracy. Initially, as I have previously said, it had been proffered on the basis of involving only D4.  In my opinion, this makes very little difference.

57.  D3 is 50 years of age, divorced with two daughters in Vietnam, both in their 20s.  He noted my indication that as D3 had been willing to plead guilty from the outset, that I would allow the full discount of one-third from the sentence.

58.  He asked me to apply the principle of totality. He submitted that it seemed that all stolen property related to the five conspiracy offences had been recovered.

59.  In respect of Charge 9, he pointed out that this was the fourth conviction for a breach of deportation order and that D3 had already served 54 months’ imprisonment for previous offences.  He said he could not oppose the OSCO application.

60.  Mr So entered mitigation for D4.

61.  He made the point that she had pleaded guilty to all offences at an early stage, well before the others.

62.  He told me she was 50 years of age, married with three children in Vietnam.  Her husband has suffered from mental illness for over 10 years and she is the breadwinner of the family.  She had been motivated by hardship rather than malice to commit these crimes.  Her eldest child is 25 and looking for employment; her second, 20, at university; and the third child in the final year at school.

63.  He said that he wished to adopt any favourable points made by other counsel on behalf of D4.  He did not seek to oppose the OSCO applications.

64.  I turn now to the sentences themselves.

65.  Arriving at the sentences, I have taken fully into account the mitigation advanced by each of counsel.  I noted the facts and the nature of the charges.

66.  I deal, first of all, with Charges 1 to 6, relating to conspiracy to steal and dealing with those goods.

67.  Whilst the prosecution has not be able to provide me with any set valuation of the stolen goods, it is self-evident that given the number of goods, that this was a large-scale operation involving planning, which is the essence of conspiracy and careful execution.

68.  The use of the lined bag and lined suitcase is an aggravating feature, as is the fact that you operated as a gang working together.

69.  I do make the point that I am conscious of and remind myself of the fact that I am dealing with you not for stealing but for the agreement to steal.  It is the conspiracy.

70.  As the prosecution cannot again say this, I do assume that all the goods have been recovered.

71.  A major point of mitigation that has been put forward, of course, is your pleas of guilty at various stages.

72.  I do note that you all have criminal records, D4, yours being on the light side.

73.  Taking into account all the circumstances I have mentioned, in respect of Charges 1 to 5 I take as a general starting point on each 3 years’ imprisonment, that is, 36 months.

74.  D3, you had been prepared to admit a conspiracy from the outset, even though at first, not with D1 and D2 but simply with D4. Indeed, it is my opinion that is what should have been done from the outset.

75.  It was a matter for the court to resolve the mechanics of the conviction.  It is well-established law, in fact, that the charge is complete when a person conspires with any of the co-conspirators. From the sentencing point of view, it does not affect the seriousness of the charge.

76.  Therefore, in fairness to you, I am taking the view that you are entitled to a full discount.

77.  D4, you pleaded guilty from the outset, so you are, as of right, entitled to a full discount.

78.  D1 and D2, you pleaded guilty at the close of the prosecution case, having admitted the prosecution evidence in total.  I understand that the two prosecution witnesses called were not at the behest of your counsel nor yourselves, and were, in my opinion, largely unnecessary.

79.  Therefore, whilst you are not entitled to the full discount, in my opinion, you are entitled to a higher-than-normal substantial discount.  That discount will be 25 per cent.

80.  In respect of the charges of conspiracy to steal, I determine these offences to be organised crimes in that they are related to the activities of two or more persons associated together solely or partly for the purpose of committing two or more acts, namely, conspiracy to steal, being schedule 1 offences involving substantial planning and organisation.

81.  Therefore, an enhanced sentence is, in my opinion, called for.  The enhancement will be set at one-third, 33⅓ per cent.

82.  In arriving at the actual sentence, I applied the principles of HKSAR v Tam Wai Po, CACC32/1998.  Under that case, in respect of these offences, I arrive at the sentence I would have imposed were it not for enhancement.  I then enhanced to arrive at the sentence to be given.

83.  The starting point, as I have said, is 36 months.  I have indicated the percentage of discount that you will receive.  I also note that these offences are part of an overall course of conduct.

84.  D1, you would be sentenced to 27 months on each sentence, 3 months of Charge 2 being consecutive to Charge 1; 24 months, therefore, being concurrent. That is a total of 30 months’ imprisonment.

85.  D2, D3 and D4, you are each involved in all five conspiracies.  Therefore, the sentence you would receive would be higher.

86.  D2, you would be sentenced to 27 months on each of the five charges, 9 months of Charge 2 being consecutive and 18 months being concurrent. That is a total of 36 months.

87.  D3, you would be sentenced to 24 months on each of the five charges, 9 months of Charge 2 being consecutive, 15 months being concurrent, a total of 33 months’ imprisonment.

88.  D4, exactly the same sentence as D3.  That is 24 months on each offence, 9 months consecutive on Charge 2, 15 months concurrent, all other periods being concurrent.  That is a total of 33 months.

89.  Each of these sentences then enhanced by one-third, as I ruled previously.  Seeking to achieve as much simplicity and clarity as possible, what I am going to do is the enhanced sentences will be imposed on each of the offences that you are convicted of and will be served concurrently.

90.  D1, therefore, on each of the two offences, you go to prison for 40 months concurrent.

91.  D2, on each of the five offences, 48 months concurrent on each.

92.  D3 and D4, 44 months on each, concurrent.

93.  I move to Charge 6.

94.  In respect of Charge 6, I take a starting point of 15 months’ imprisonment reduced to 10. In fairness, I applied the principle of totality in this case.

95.  Therefore, D1, you will serve the 10 months in the following way:  8 months will be concurrent and 2 months will be consecutive.  You will go to prison in total for 42 months.

96.  D2, you will serve your 10 months in exactly the same way:  8 months concurrent to your sentence of 48 months, and 2 months consecutive. You will go to prison for an overall total of 50 months.

97.  D3, on Charge 8, that is the unlawful remaining, you will go to prison for the standard 15 months. 

98.  In respect of Charge 9, this is your fourth conviction, I am told by Mr Yuen, and that is confirmed by the record, for breach of deportation order.  That is an alarming level of persistence.

99.  I take a starting point of 30 months’ imprisonment, reduced to 20 months.  However, I do apply the principle of totality.  These two sentences for 8 and 9 will be concurrent with each other but consecutive to Charges 1 to 5.

100.  That is a total of 64 months’ imprisonment, 5 years 4 months.

101.  D4, in respect of Charge 10 for unlawfully remaining, I take the standard penalty of 15 months’ imprisonment; Charge 11, I take as a starting point 27 months reduced to 18 months.

102.  Applying the principle of totality, these will be served concurrent to each other and also the 18 months will be served in this way:  16 months will be consecutive, making a total of 60 months’ imprisonment, 2 months will be concurrent.

103.  Finally I would like to record my thanks to counsel for their assistance in this case.