HKSAR v. FEBRI NOFA also known as RAFLES, BAMBANG and ALDO

DCCC 182/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 182 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a total of 16 charges:-

(a) charge 1: attempted theft;

(b) charges 2 to 4: theft; and

(c) charges 5 to 16: breach of deportation order.

CHARGE 1

2.  The facts to which the defendant pleaded guilty were as follows.

3.  On 23 November 2016, PW1 went to the HSBC at Whampoa Garden and withdrew cash HK$130,000.  She then went to the Bank of China at Ma Tau Wai Road, Hung Hom and withdrew HK$50,000.  She put these two sums into two different envelopes which were put inside her rucksack.  When she went out from the Bank of China, the defendant immediately followed her.  PW2 and PW3, both police officers, observed that the defendant was acting furtively and they put him under observation.  PW2 saw the defendant open PW1’s rucksack with his hands and took an envelope containing HK$50,000.  PW1 felt that someone had touched her rucksack so she turned around.  The defendant immediately put the envelope back to PW1’s rucksack and walked past PW1 quickly.  PW1 to PW3 gave chase to the defendant who was eventually intercepted.  Upon inquiry, the defendant said that his wife was pregnant.  He needed money so he stole it.

CHARGE 2

4.  PW1 conducted a search on the defendant and found an iPhone 6S inside his shoulder bag.  The screen of the iPhone showed a photo of a Chinese toddler and the defendant did not know the password of the iPhone.  The owner of the iPhone was subsequently located and she confirmed that she travelled to Hong Kong as a visitor on 21 November 2016.  At about 12 noon to 2pm on 23 November 2016, she went to a restaurant in Causeway Bay.  The iPhone was still with her at that time.  When she left the restaurant, she found it had gone missing.

5.  The defendant was arrested for pickpocketing and theft at the scene.  In subsequent cautioned interviews, he stated that he arrived in Hong Kong on 23 November 2016.  He saw PW1 walk out from the bank and he opened her rucksack to steal her money.  He also said that at 11 am on 23 November 2016, a Chinese male asked him to buy the iPhone at HK$500 and he bought. 

CHARGE 3

6.  At about 12.20pm on 16 May 2016, PW5 went to the Hang Seng Bank in Central and withdrew cash HK$230,000.  She put the cash inside an envelope and put it into her rucksack.  While she was walking along Des Voeux Road Central, she noticed someone had touched her rucksack on her back for a few seconds. Later, she noticed the envelope containing the cash had gone missing.

7.  The CCTV cameras there captured two South Asian males (one of them was the defendant) together with 2 South Asian females.  They followed PW5 and the defendant touched PW5’s rucksack. 

8.  The defendant was arrested for the 3^rd charge on 24 November 2016.  Under caution, he admitted having stolen the money. 

9.  In a cautioned video recorded interview, he confirmed that the CCTV captured him.  The male accomplice was Satria, and the two female accomplices were Heni and Liling.  He stole the money from PW5’s rucksack and passed it to Satria who gave him $20,000.  He had spent the sum of money.

CHARGE 4

10.  PW6 entered Hong Kong as a visitor on 21 October 2016.  At 11.55 am on the same day, he went to a coffee shop at the Alexandra House, Central with his friend.  He placed his rucksack which contained a smartphone valued about HK$3,000, another smartphone valued about HK$4,000, cash of USD20,000 and 1 Russian passport behind his chair.  He then went to the cashier counter.  Upon return, he found his rucksack and the properties inside had gone missing.

11.  The CCTV camera of the coffee shop captured the defendant approaching PW6’s friend.  He apparently deceived PW6’s friend into believing that he had dropped something on the floor.  At the same time, another male took away PW6’s rucksack. 

12.  In a cautioned interview, the defendant admitted that there were a total of 5 accomplices including Satria, Iwan, Reni and Liling.  He was told by Satria to drop a HK$10 banknote on the floor.  He told PW6’s friend that he dropped something.  At the same time, Satria removed the rucksack and Iwan was the lookout.  Satria gave him USD1,000. 

CHARGES 5 TO 16

13.  A travel index check and a fingerprint examination were conducted on the defendant.  The defendant was found to be a subject of a deportation order issued on 29 March 2010.  He was deported to Indonesia on 12 April 2010.  He entered Hong Kong again in the name of Bambang and was re deported to Indonesia on 18 March 2013.  He entered again in the name of Aldo and was re-deported to Indonesia on 16 October 2015.

14.  The following table shows the number of times and the date of his entry to Hong Kong.

Date	Event	Charge
29 March 2010	Deportation Order issued
12 April 2010	D was first deported to Indonesia
18 March 2013	D entered HK in the name of Bambang and re-deported to Indonesia (date of entry unknown)
16 October 2015	D entered HK in the name of Aldo and re-deported to Indonesia (date of entry unknown)
7 December 2015	Breach of Deportation Order	5th charge
5 January 2016	Breach of Deportation Order	6th charge
3 February 2016	Breach of Deportation Order	7th charge
6 March 2016	Breach of Deportation Order	8th charge
10 April 2016	Breach of Deportation Order	9th charge
16 May 2016 entered at 6:04 am	Breach of Deportation Order	10th charge
16 May 2016 at 12:20 pm	Theft from PW5 cash of $230,000	3rd charge
4 June 2016	Breach of Deportation Order	11th charge
14 July 2016	Breach of Deportation Order	12th charge
10 August 2016	Breach of Deportation Order	13th charge
2 September 2016	Breach of Deportation Order	14th charge
17 October 2016	Breach of Deportation Order	15th charge
22 October 2016 at 11:55 am	Theft from PW6 US$20,000, a passport, a rucksack, a phone case and 2 smartphones	4th charge
23 November 2016 entered at 6:05 am	Breach of Deportation Order	16th charge
23 November 2016 around 2:30 pm	Attempted Theft from PW1	1st charge
23 November 2016 12 noon to 2 pm	Theft from PW4 one iPhone	2nd charge

15.  In a cautioned interview, he admitted his real name was Rafles and also known as Bambang, Aldo and Febri Nofa.  He needed to change his names in order to enter Hong Kong.  He knew that he could not enter Hong Kong with his previous name.  He provided false information to the Indonesian authorities to apply for new passports.  He confirmed that he entered Hong Kong with the passport in the name of Febri Nofa on all the relevant dates set out in the table above. 

PREVIOUS CRIMINAL CONVICTIONS

16.  The defendant has appeared in court on 3 occasions with a total of 4 previous criminal convictions, namely:-

(1) in 2009, an offence of theft (8 months);

(2) in 2012, an offence of breach of deportation order (18 months); and

(3) on 31 July 2014, an offence of theft for which he was sentenced to 4 months, 3 months to run consecutively to an offence of breach of deportation order for which he was sentenced to 20 months.

ANTECEDENT STATEMENT

17.  The antecedent statement showed that he is an Indonesian aged 36.  He is married with a son aged 12 and a daughter aged 7.  He assisted his family to run a grocery store.  He received education up to primary level. 

MITIGATION

18.  Mr Yeung, solicitor for the defendant, submitted that the defendant lived with his parents in Indonesia.  He committed the present offences because he wanted to raise funds to support his family in Indonesia.  His father had a stroke and became paralysed and he needed to pay for the medical expenses. After he has committed the present offences, his wife took the children away and asked for a divorce.  The defendant is now truly remorseful and urged the court to show mercy on him.

19.  Mr Yeung said that the defendant was arrested for charges 1 and 2. Charges 3 and 4 were laid against the defendant as a result of his confessions.  He cooperated with the police, disclosed the identities of the accomplices and admitted that he was captured in the relevant CCTV.  He only received $20,000 in charge 3 and US$1,000 in charge 4. 

20.  Mr Yeung agreed that there were aggravating factors in this case, namely:-

(i) the defendant committed the offences with others;

(ii) he has similar previous criminal convictions; and

(iii) he came to Hong Kong for the purpose of committing the present offences.

21.  In respect of the sentencing guidelines, Mr Yeung referred this court to HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 HKSAR v Lee Lei Lei CACC 206/2016 (I note that it is a case of shop theft and theft of jewelries in exhibitions).    

22.  For the offence of breach of a deportation order, Mr Yeung relied on HKSAR v Joned Asri CACC 345/2012 and said that the tariff for this offence was 27 months’ imprisonment.  He then mentioned HKSAR v Wong Sun Chu & Others DCCC 711/2014 and said a 3-month imprisonment term was added to the starting point for sentence for each aggravating factor.

23.  He asked the court to bear in mind the totality principle: HKSAR v Aguilar Villanueva William Rafael CACC 485/2012.  

24.  Mr Hui, counsel for the prosecution, submitted the following cases for the court’s consideration: R v Saldana Alca Jose CACC 655/1996; HKSAR v Ng Ah Shan [2015] 1 HKLRD 783 and HKSAR v Bui Van Khai [2013] 2 HKLRD 471.

REASONS FOR SENTENCE

25.  In passing sentence, I take into account everything said by Mr Yeung for the defendant and I bear in mind the principles enunciated in the aforementioned and other authorities.

Charges 1 and 2

26.  For charges 1 and 2, it is noted that the defendant came to Hong Kong at 6.05 am on 23 November 2016.  It was hours later that he committed the pickpocketing offences alone in charges 1 and 2 between 12 noon and 2 pm on 23 November 2016.  Besides, the criminal records of the defendant show that he is a repeat offender for he has two similar convictions of theft. 

27.  In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal said that the guideline sentence of 12-15 months after trial is appropriate for a first time offender.  Aggravating features include where the offence is committed in a place in which the public is at particular risk such as crowded places like the MTR, crowded shopping areas where the pedestrian traffic is heavy; and where the accused is a repeat offender.

28.  Having considered all the circumstances of the case, I adopt 15 months’ imprisonment for charge 1 and charge 2.

29.  There are, however, some aggravating factors in these two charges, namely:-

(i) the defendant is a repeat offender;

(ii) the defendant came to Hong Kong to commit crimes; and

(iii) the defendant committed charge 2 in a crowded place.

30.  For charge 1, the starting point for sentence is enhanced by 3 months for each of the aforementioned aggravating factors (i) and (ii).  The starting point for sentence is therefore 21 months.

31.  The offence of charge 2 was committed on a visitor who was in a restaurant in Causeway Bay.  It goes without saying that it is a famous shopping area with crowds of people day and night.  3 months will be added to the 15 months starting point for each of the aggravating factors (i), (ii) and (iii) aforementioned.  The starting point for sentence is therefore increased to 24 months.

32.  Upon his pleas of guilty, the sentence of charge 1 is reduced to 14 months’ imprisonment; and that of charge 2 is 16 months’ imprisonment.

Charges 3 and 4

33.  Having considered HKSAR v Ng Ah Shan, I come to conclude that Charge 4 is also a pickpocketing offence.  The Court of appeal said that:-

“for sentencing purposes, there was no real distinction between pickpocketing and merely walking away with another person’s property. The nature of the offence should not be affected by whether the victim’s property was placed inside their clothing or bags nearby, as opposed to inside the clothes they were wearing or the bags they were carrying.”

34.  Charge 3 was committed by a group of 4 South Asian people around 1.30 pm on 16 May 2016.  It is of note that the defendant entered Hong Kong at 6 am on the same day. 

35.  In respect of charge 4, the defendant, having entered Hong Kong on 17 October 2016, committed the offence with others at noon on 22 October 2016. 

36.  Obviously, these two offences were pre-meditated and committed in a professional manner in the sense that each accomplice was assigned a role to play and they each had to “execute” the plan at good timing.

37.  In R v Saldana Alca Jose CACC 655/1996, the two applicants, who were found to come to Hong Kong to commit crimes, pleaded guilty that they together with a third person, approached a 78 years old tourist and deliberately spilt tomato juice on him.  When they offered to clean up, they stole the old man’s briefcase which contained a passport, a bankbook, an air ticket and a piece of jade valued $1.5m.  In dismissing the appeal against sentence, the Court of Appeal had this to say:-

“…… organized crimes of this nature including group pickpocketing even without international ramifications, might in future properly attract a starting point of at least 2½ years’ imprisonment.”

38.  For each of charges 3 and 4, I adopt 2½ years’ imprisonment.

39.  However, the starting point for charge 3 has to be enhanced for 3 months for the fact he came to Hong Kong to commit crimes; and another 3 months that he is a repeat offender.  The starting point is therefore increased to 36 months’ imprisonment.

40.  There was a 5-day time gap between the date of his entry to Hong Kong and the date of his commission of charge 4.  Giving him the benefit of doubt, I would not regard his sole purpose of coming to Hong Kong on this occasion was to commit crimes.  As such, I do not enhance the starting point on this basis. However, I do not lose sight that he is a repeat offender.  The starting point for charge 4 is therefore increased to 33 months’ imprisonment.

41.  The sentences, after 1/3 discount for the defendant’s guilty pleas, are 24 and 22 months respectively. 

42.  I will further reduce them for 8 months to reflect that he made voluntary confessions to the offences, if not, the authority would not be able to detect the crimes.  The sentences are reduced to 16 months for charge 3 and 14 months for charge 4.

Charges 5 to 16

43.  There are a total of 12 charges of breach of deportation order.

44.  In determining the appropriate starting point for sentence, I have considered HKSAR v Pham Van Tuan CACC 272/2010, HKSAR v Pham Van Hung CACC 141/2001 and HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762.  In the last case, it was held that a sentence of 21 months’ imprisonment could be justified for a second breach of a deportation order.

45.  In HKSAR v Joed Asri CACC 345/2012, the defendant pleaded guilty to 10 charges of breach of deportation order and the sentencing judge sentenced him to a total of 59 months’ imprisonment.  The Hon CJHC giving the judgment of the Court held that:-

“The ultimate sentence, after enhancement must be proportionate to the seriousness of the offence, reserving the maximum penalty for worst cases of its kind. What is not permissible, in the case of a repeat or even persistent offender, is to keep enhancing the starting point for each repeat offence, which is not worst of its kind, until one reaches the maximum …… The enhanced starting point must plateau at some time.

…… the enhanced starting points ought to have flattened out after the fifth breach, that is, 42 months’ imprisonment ……

the starting points for the 5^th to 14^th charges should be 27, 30, 30, 36, 42, 42, 42, 42, 42 and 42 months’ respectively

Given the applicant the full one-third discount, the individual sentences for the ten breaches should be 18, 20, 20, 24, 28, 28, 28, 28, 28 and 28 months.

…… the total sentence for the ten charges should be 33 months.”

46.  The defendant has two previous convictions for the same offences, namely:-

(i) the 1^st breach of a deportation order in 2012 for which he was sentenced to 18 months’ imprisonment, and

(ii) the 2^nd breach in 2014 to 20 months’ imprisonment.

47.  In the present case, I adopt the following starting points for charges 5 to 16, and give a one-third discount of sentence for the guilty pleas he entered.

Charges	Starting point	Sentence after 1/3 discount
(1st breach)		(18 months)
(2nd breach)		(20 months)
5th Charge (3rd breach Dec 2015)	33 months	22 months
6th charge (4th breach Jan 2016)	36 months	24 months
7th charge (5th breach Feb 2016)	39 months	26 months
8th charge (6th breach Mar 2016)	42 months	28 months
9th charge (7th breach Apr 2016)	42 months	28 months
10th charge (8th breach May 2016)	42 months	28 months
11th charge (9th breach June 2016)	42 months	28 months
12th charge (10th breach July 2016)	42 months	28 months
13th charge (11th breach Aug 2016)	42 months	28 months
14th charge (12th breach Sept 2016)	42 months	28 months
15th charge (13th breach Oct 2016)	42 months	28 months
16th charge (14th breach Nov 2016)	42 months	28 months

Totality principle

48.  All the offences (charge 1 to 16) are separate and distinct.  However, I bear in mind the totality principle and make the following orders:-

(a) Charges 1 and 2 were committed on the same day within hours. The sentences for these two charges (14 and 16 months respectively) are to served concurrently, making a total of 16 months’ imprisonment.

(b) The sentences for both charges 3 and 4 (16 and 14 months respectively) are to run concurrently but 14 months of them are to run consecutively to the term of sentence imposed on charges 1 and 2, thus making a total of 30 months’ imprisonment (16 months in para (a) + 14 months in para (b) = 30 months).

(c) There are 12 offences of breach of deportation order:-

(i) the sentences for the 5^th to 10^th charges (6 charges) should run concurrently, making a total of 28 months; and

(ii) the sentences for the 11^th to 16^th charge (another 6 charges) should run concurrently (a total of 28 months) but 7 months of them should run consecutively to the total sentence for the 5^th to 10^th charges. In other words, the total sentence for the 12 charges should be 35 months. I order that 24 months of this term of 35 months imposed for all the breaches are to run consecutively to the previous sentences imposed on charges 1 to 4.

49.  The ultimate sentence is 4 years and 6 months’ imprisonment or 54 months  (16 + 14 + 24 = 54 months which represents a global starting point of 81 months (6 years and 9 months) and which starting point I consider to be sufficiently reflect the defendant’s overall criminality and culpability in these 16 charges.