HKSAR v. Rico De Arguello Elizabeth and Another

DCCC 349/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 349 OF 2015

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Reasons for Sentence

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Charges and facts

1.D1 and D2 plead guilty to 3 joint charges of theft.

2.At mid-noon on 3 December 2014, D1 and D2 entered a jewelry shop on Queen’s Road East, Wan Chai.  The salesperson LUK showed them some jewelry items.  After they left, LUK found a pair of diamond earrings (valued at $168,000) missing.  There were no other customers in the shop except them when the loss occasioned.  These facts constituted the 1^st Charge. 

3.At mid-noon on 13 December 2014, D1 and D2 entered a jewelry shop on Percival Street, Causeway Bay.  The salesperson CHOI was showing 4 gold bracelets on the table to 3 customers.  D1 and D2 made enquiries to CHOI.  CHOI turned around and asked another shopkeeper to assist them.  When CHOI turned back to them, they had left.  One of the gold bracelets (valued at $7,462) on the table was missing.  CCTV footages showed D2 taking a gold bracelet from the tray on the table at the material time and hide it below his wallet on his left hand.  These facts constituted the 2^nd Charge. 

4.At mid-noon on 24 February 2015, the salesperson LAI of a Broadway shop on Canton Road, Tsim Sha Tsui was serving 4 customers and had 2 iPhone 6+ on the table.  The customers asked him to show them some cameras.  After he had introduced the cameras to them, he found one of the iPhone 6+ (valued at $6,488) missing.  CCTV footages showed that D1 and D2 had entered the Broadway shop.  D2 took a white box on the table while D1 stood close to D2’s back and looked at D2.  They left the shop together. These facts constituted the 3^rd Charge. 

5.On 5 March 2015, D1 and D2 were arrested on the street in Yau Ma Tei.  In the subsequent police enquiries, they admitted all 3 offences.  The police found the missing iPhone 6+ in their hotel room.

6.Immigration records showed that they had come to Hong Kong together before each offence, departed from Hong Kong together after each offence, and come to Hong Kong together before the arrest. The pattern was as follows:

(1) 1^st theft, arriving on 2 December 2014, theft on 3 December, departing on 10 December 2014;

(2) 2^nd theft, arriving on 13 December 2014, theft on 13 December, departing on 15 December 2014;

(3) 3^rd theft, arriving on 23 February 2015, theft on 24 February, departing on 26 February 2015;

(4) Arriving on 3 March 2015, arrested on 5 March 2015.

Mitigation

7.D1 is the wife of D2.  She is 60 years of age.  He is 56.  They are Venezuelans.  They have a clear record in Hong Kong.  

8.In their Background Reports, D1 and D2 both claimed to work in D1’s parents’ silver jewelry business in Venezuela.  D2 claimed that he earned US$1,800 per month and D1’s salary was US$700 per month.   D1 claimed to have US$1,500 from D2 as her salary.  They did not want to explain the purpose of their 3 brief visits to Hong Kong between December 2014 and February 2015.  Their son was working in Venezuela whereas their daughter was working in the United States. 

9.D1’s medical report revealed a complaint of discomfort in her throat and abdomen.  Examination of her throat showed nothing remarkable whereas the scar over her abdomen from a previous operation was treated.  She had a suspicion for various ailments.  Further assessments would be made. 

10.D2’s medical report indicated that he had a previous gunshot wound over his left leg.  He revealed that it had received an operation in 2013 in Venezuela.  It gave him some discomfort when he was in remand.  Medication was made available to him.  His general health condition is stable.  

Sentencing considerations

11.Mr. Morley in mitigation has put forward 4 cases in 5 judgments[1] as comparables in the sentencing of foreigners acting in joint enterprise to steal expensive items from retail shops.

12.In HKSAR v Arlene Jover Jumuad & 4 Others DCCC 79/2011, the 5 defendants were Philippine nationals.  They stole a diamond valued at $2,730,000 (1^st Charge) and $936,000 (2^nd Charge) respectively in 2 conspiracies.  They were recruited by a syndicate in the Philippines to come to Hong Kong to commit the offences.  Each conspiracy involved considerable planning and sophistication.   The thefts tool place in the crowded hall of a jewelry exhibition held in the Convention and Exhibition Centre.  The diamonds were not recovered.  To address the mischief of Hong Kong’s prestigious image for international fairs being tarnished, the Court took a starting point of 5 years and 3 years respectively for the 1^st and the 2^nd Charges. 

13.In HKSAR v Padilla Gerardo Gonzaga & 4 Others CACC 275/2011, the 5 defendants were Philippine nationals.  Two days after their arrival in Hong Kong, they stole a valuable diamond valued at $251,682 in an international jewelry show at the Hong Kong Exhibition Centre.  The Court of Appeal considered that the “aggravating features were the international element and the facts that the offence was planned and committed by several persons … and those aggravating features in the context of a public exhibition of expensive jewelry, warranted in each case a sentence, prior to discount for mitigating features, of four years’ imprisonment” (paras 22 – 23). 

14.In HKSAR v Tsogbadrakh Otgon CACC 393/2013, D3 was in a group of 5 Mongolians who came to Hong Kong.  They stole 10 diamonds in total valued at over US$20,000 from a booth of a jewelry show at the Hong Kong Exhibition Centre (1^st charge) and handled stolen jewelry valued at over US$70,000 in the hotel room (2^nd charge).  The Court of Appeal upheld an overall sentence of 4 years and 3 months imposed after trial. 

15.In HKSAR v Brillantes Victoria Oliva & 2 Others DCCC 907/2014, D1 – D3 plead guilty to 2 charges of theft (1^st and 2^nd Charges) and other charges of breach of deportation order.  They were Philippine nationals.  One day after arriving in Hong Kong, they stole a diamond ring valued at $20,922 from a salesman at the counter of a jewelry shop in Tsim Sha Tsui.  Eight hours later, they stole a diamond watch valued at $477,000 from a saleslady at the counter of a jewelry shop also in Tsim Sha Tsui.  The items were not recovered.  On the next day they left Hong Kong.   Two months later, they entered Hong Kong again.  They were arrested when they wandered in Tsim Sha Tsui.  His Honour Judge J. Lam had to deal with a submission to seek to distinguish loss at a jewelry show as opposed to a shop as follows:

41. Counsel for D2 and D3 tries to draw a distinction between stealing at a public jewelry show and stealing at a jewelry shop. He says Hong Kong’s international reputation would be at stake in the former case.

42. What counsel says might well be the case but that does not mean Hong Kong’s reputation would not be hampered to any degree with this kind of theft occurring in shops in such tourist area like Tsim Sha Tsui. If there is any distinction to be drawn, it is only a slight distinction and that slight distinction does not warrant any departure from the severe sentences the Court of Appeal has endorsed in the two appeal cases [HKSAR v Padilla Gerardo Gonzaga & 4 Others CACC 275/2011; HKSAR v Tsogbadrakh Otgon CACC 393/2013]. (my emphasis)

16.For the 1^st and the 2^nd Charges, Judge J. Lam took a starting point of 3 years and 4 years respectively for each defendant. 

17.I agree with Judge J. Lam in that the sentence for theft ought to reflect little distinction whether it was at the exhibition hall or a shop in the tourist area.     

Sentencing the present defendants

18.The time of their brief visits to Hong Kong synchronized with the respective thefts they had committed.  Each time they targeted a distracted salesperson at a shop in the tourist area.

19.The 1^st Charge involved the theft of a pair of diamond earrings valued at $168,000 on 3 December 2014.  I take a starting point of 3 years and 6 months.  There is a one-third discount for the guilty plea.  The sentence is 2 years and 4 months for each defendant.

20.The 2^nd Charge involved the theft of a gold bracelet valued at $7,462 on 13 December 2014.  I take a starting point of 2 years and 6 months.  There is a one-third discount for the guilty plea.  The sentence is 20 months for each defendant. 

21.The 3^rd Charge involved the theft of an iPhone 6+ valued at $6,488 on 24 February 2015.  I take a starting point of 2 years and 6 months.  There is a one-third discount for the guilty plea.  The sentence is 20 months for each defendant. 

22.Each theft was committed in a different visit to Hong Kong.  The sentences ought to be consecutive.  However, I consider the totality principle and come to adjust their overall sentences in the following way: 

(1) 1^st Charge, 2 years and 4 months;

(2) 2^nd Charge, 4 months consecutive to other charges;

(3) 3^rd Charge, 4 months consecutive to other charges.

23.The overall sentence is 3 years for each defendant.