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

CACC 357/2018

[2019] HKCA 718

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 357 OF 2018

(ON APPEAL FROM DCCC 587 OF 2018)

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REASONS FOR JUDGMENT

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1.  On 28 November 2018, the applicant (D1) appeared jointly with one “Dodi Ginanjar” (D2) in the District Court before HH Judge Casewell (“the judge”), and pleaded guilty to the following charges:

(i)   against himself alone, a charge of “Attempted theft” contrary to section 9 of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200. This offence took place on 22 March 2014;

(ii)   jointly with D2 of a substantive charge of “Theft” which took place on 7 March 2018; and

(iii)   six charges of “Breach of deportation order”, contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115.

2.  He was sentenced by the judge to a total sentence of 46 months’ imprisonment and now applies for leave to appeal against his sentences. 

3.  At the hearing of the application I refused it and said I would hand down my reasons for doing so at a later date. This I now do.

The charges

4.  The two Theft Ordinances were pickpocketing type offences, with the second offence involving the theft of HK$41,000. In respect of the 2014 attempted theft offence the applicant absconded whilst on police to court bail and left Hong Kong.

5.  The breach of deportation order charges arose from a deportation order being issued to the applicant under the name of “ANDY TAN” on 4 October 2012. This was, presumably, a consequence of his conviction for a charge of theft for which, on 27 June 2012, he was sentenced to 6 months’ imprisonment. 

6.  The applicant subsequently entered Hong Kong on 31 October 2013 on an Indonesian passport in the name of “ISMET” and left Hong Kong on 23 November 2013. He re-entered Hong Kong on the same passport on 8 December 2013 and 3 March 2014, and left on 26 December 2013 and 22 March 2014 respectively. He later entered Hong Kong on 5 July 2017 on the strength of an Indonesian passport in the name of “TOMMY WINATA” and left Hong Kong on 2 August 2017. Using the same passport he entered Hong Kong on 22 October 2017 and left on 11 November 2017, and re-entered again on 3 March 2018.

The judge’s Reasons for Sentence 

7.  The judge regarded the two offences of theft and attempted theft, as “pickpocket type thefts” with the presence of three aggravating features, namely the applicant was a repeat offender, he committed the offences in crowded places and he came to Hong Kong to commit them. He directed himself in accordance with HKSAR v Ngo Van Huy[1], in which the Court of Appeal laid down sentencing guidelines for pickpocketing. 

8.  For the offences of breach of deportation orders, the judge directed himself in accordance with HKSAR v Joned Asri[2], where the Court of Appeal laid down guidelines for multiple breaches of a deportation order.

9.  The judge determined what sentences he should impose on the applicantas follows:

(i)   For the first offence of attempted theft the judge adopted an initial starting point of 12 months’ imprisonment which he then enhanced to 21 months to allow for the presence of the three aggravating factors.  He then discounted this final starting point by one-third for the applicant’s plea of guilty and so reached a final sentence of 14 months’ imprisonment.

(ii)   For the second offence of theft, which the applicantfaced jointly with D2, he again found there to be present the three aggravating factors together with the further aggravating factor that the offence was committed by more than one person. Also, this offence was more serious as it involved the theft of a substantial amount of money. The judge adopted an initial starting point of 15 months’ imprisonment which he then enhanced to 27 months’ imprisonment to allow for these aggravating factors. After allowing the one-third discount for the plea of guilty, the judge reached a final sentence of 18 months’ imprisonment.

(iii)   In respect of the six breach of deportation charges the judge adopted the starting points that are recommended in the Joned Asri case.  After discounting these starting points for the pleas of guilty, the sentences for these charges became 18 months (Charge 4); 20 months (Charge 5); 20 months (Charge 6); 24 months (Charge 7); 28 months (Charge 8) and 28 months (Charge 9).

(iv)   Applying the totality principle the judge decided that the appropriate overall sentence should be 46 months’ imprisonment.  He achieved this by ordering that:

    (a)   the 1^st and 3^rd offences should be served concurrently with each other;

    (b)   the 4^th to the 9^th offences should also be served concurrently with each other, and

    (c)   the 1^st and 3^rd offences should be served consecutively to the 4 to 9 offences.

The applicant’s grounds of appeal

10.  The applicantis unrepresented in the leave application. In his Form XI, he complained that the overall sentence of 46 months’ imprisonment was “too severe”. He did not file any written submission. At the hearing of the application he apologized for his conduct and promised not to repeat it. He handed to the court a letter written by a sibling which explained the personal circumstances of his children and parents.

Discussion

11.  Given the prior record of the applicant, the number of offences committed by him, the justifiable finding by the judge that he came to Hong Kong in order to commit them and the circumstances surrounding their commission, I do not regard as reasonably arguable the complaint that the total sentence is manifestly excessive.

12.  In my view, it is not reasonably arguable that in respect of the two theft offences:

(i)   the judge erred in the initial starting points he adopted for each offence;

(ii)   in identifying as aggravating features the matters which he did; and

(iii)   in the amounts by which he enhanced his starting points to allow for the aggravating features.

13.  In respect of the multiple breaches of the deportation order (the 4^th to 9^th charges), as the judge correctly applied the sentencing guideline laid down in Joned Asri it is not reasonably arguable that he adopted excessive starting points for each offence. 

14.  The only issue is whether the total sentence is excessive. In considering this question the finding of the judge that the applicant was not coming to Hong Kong to find legitimate employment but was, instead, coming here in order to commit crimes, is of crucial importance. Unarguably this was a correct finding and it not only requires that the sentences be enhanced but it also requires that the sentences be sufficiently severe so as to act as a deterrent to others. The courts must send a strong message that persons coming to Hong Kong to commit crimes here will receive no sympathy and that when they manage to enter Hong Kong by successfully evading our immigration procedures and in defiance of a deportation order then their sentences will be particularly severe. Because of the need for deterrent sentences the personal circumstances of the applicant’s family, as sympathetic as they may be, cannot sway a sentencing court from imposing what is otherwise the appropriate sentence for conduct of this level of seriousness.

Disposition

15.  For these reasons I refused the applicant leave to appeal his sentences.  I reminded him of his right to renew his application before the Court of Appeal and also reminded him that should he do so, and should the Court of Appeal find no merit in his renewed application, the Court of Appeal has the power to order loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.