HKSAR v. Sondi Nudin also known as Ari Sanjaya

CACC 147/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 147 OF 2015

(ON APPEAL FROM DCCC NO. 194 OF 2015)

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BETWEEN

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JUDGMENT
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1.The applicant was the second of three defendants who appeared before HH Judge Casewell in the District Court on 27 April 2015. He pleaded guilty to one charge of Theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charge 1), and five charges of breach of a deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115 (Charges 2 to 6). In respect of Charge 1, he was sentenced to 12 months’ imprisonment. For the five charges of breach of a deportation order, he was sentenced to terms of imprisonment of 18 months (Charge 2), 20 months (Charge 3), 20 months (Charge 4), 24 months (Charge 5), and 28 months (Charge 6), all of which terms were ordered to be served concurrently with each other, but consecutively to the 12 months’ imprisonment in respect of Charge 1. The total sentence for all six charges was, therefore, 40 months’ imprisonment. He now seeks leave to appeal against his sentences.

Facts

2.The facts which were admitted by the applicant in support of his pleas were as follows.  On 18 December 2014, the applicant and the two other defendants went to a Japanese restaurant on the 2^nd floor of Jardine Centre, No 50 Jardine’s Bazaar, Causeway Bay.  The applicant and the 1^st defendant seated themselves at a table in the restaurant; while the 3^rd defendant loitered at the reception area outside.  The 1^st defendant used his arm and leg to pull and remove a rucksack from under the chair of a Japanese male customer, while the applicant kept watch.  Then the 1^st defendant took off and left the restaurant with the rucksack, followed closely by the applicant.  They were joined by the 3^rd defendant as they attempted to leave via a staircase only to find the emergency exit locked.  They returned to the reception area outside the restaurant and attempted to escape by using the elevator, by which time the Japanese customer had discovered that his rucksack had gone missing.  He and two other customers of the restaurant stopped the applicant and the two defendants from leaving.  When the Japanese customer indicated that the three defendants would be allowed to leave if they returned the money to him, the applicant produced from his trouser pocket a white envelope containing 1 million Japanese yen and handed it over to the customer.  The police arrived shortly afterwards and arrested the applicant and the two other defendants (Charge 1).

3.Subsequent investigation by the police revealed that a deportation order dated 7 December 1994 had been served on the applicant under the name “Ari Sanjaya” on 24 February 1995.  However, it was found that the applicant had entered Hong Kong, using the name “Sondi Nudin”, on 8 February 2011, 6 June 2011, 3 July 2011, 18 April 2014, and 13 December 2014 (Charges 2 to 6 respectively).

Mitigation

4.The applicant, an Indonesian national, was 44 years old at the time of his sentence.  He was married with two daughters, aged seven and eight years of age.  He worked as a second-hand car agent in Indonesia.  He had a criminal record for theft in Hong Kong in 1994, for which offence he was sentenced to 9 months’ imprisonment.  On completion of his sentence, he was served with a deportation order on 24 February 1995.

5.In mitigation, the applicant submitted that he had met the two other defendants in Macao where they had gambled, after which they went to the restaurant in Causeway Bay for a meal.  The applicant maintained that it was only then that they decided to commit the theft offence.  In relation to the breaches of the deportation order, the applicant submitted that since the order was served on him as long ago as February 1995, he had forgotten its existence.

Reasons for sentence

6.In sentencing the applicant, the judge noted that the starting point for an offence akin to pickpocketing was 12 to 15 months’ imprisonment. Given the value of the items inside the rucksack, the judge concluded that the applicant and his accomplices had clearly targeted items of value, making the offence a more serious one.  The judge stipulated, therefore, a starting point of 15 months’ imprisonment for Charge 1 and enhanced it by 3 months on account of the fact that the applicant and the two other defendants were clearly acting in concert.  The overall sentence after trial was, therefore, one of 18 months’ imprisonment.  Giving the applicant the usual one-third discount for his guilty plea, the judge sentenced him to 12 months’ imprisonment in respect of Charge 1.

7.For the five charges of breach of a deportation order, the judge adopted ascending starting points of between 27 and 42 months’ imprisonment.  After a full one-third discount for his guilty pleas, the judge sentenced the applicant to concurrent terms of imprisonment of between 18 and 28 months in respect of Charges 2 to 6, making a resulting sentence of 28 months’ imprisonment for the breaches of the deportation order.

8.Finally, the judge ordered that the 28 months’ imprisonment in respect of Charges 2 to 6 be served consecutively to the 12 months’ imprisonment for Charge 1, making an overall sentence of 40 months’ imprisonment for the six charges.

Grounds of appeal against sentence

9.In his home-made statement attached to the Notice of application for leave to appeal dated 4 May 2015, the applicant indicated his wish to appeal against the sentences imposed on him in respect of Charges 2 to 6 only, submitting that he had responsibilities toward his wife who was sick, and he expressed concern over the fate of his wife and children in view of the long sentence he had been given.  He apologised for his wrongdoings and asked for mercy.  Of course, by virtue of section 83I(2) of the Criminal Procedure Ordinance, Cap 221, the appeal is deemed to be in relation to all of the sentences passed upon the applicant.

10.In a handwritten letter dated 22 July 2015, and a further (undated) letter received by the Court on 19 August 2015, the applicant again stressed that he was the head of the family and had to provide for his wife and children.  He said further that his wife had been suffering from breast cancer, which had necessitated an operation on her left breast in 2011, and that she was once again hospitalised due to cancer on her right breast; the applicant described his wife’s illness as a life-threatening one.  The applicant submitted that he had to pay for his wife’s treatment, and he asked for a reduction in his sentence.

Respondent’s submissions

11.The application for leave to appeal against sentence is opposed by the respondent.

12.Mr Daryanani, for the respondent, relies on the leading authority of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, and submits that the starting point for an offence of pickpocketing for a first offender would be 12 to 15 months’ imprisonment, but that the sentence should be enhanced if the offence involves multiple offenders.  Further, he refers to the case of HKSAR v Joned Asri also known as Tri Wahyu (unrep., CACC 345/2012), in which the Court of Appeal said in respect of ten charges of the breach of a deportation order (Charges 5 to 14 in that case), at para 22:

“In our view, bearing in mind (amongst other things) the intervals between the breaches, 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. Giving 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 of imprisonment respectively.”

13.Finally, the respondent argues, on the basis of HKSAR v Kong Yung and another [1999] 1 HKC 395, that offenders who have entered Hong Kong illegally and then committed other offences must expect to receive consecutive sentences as between the immigration and other offences.

Consideration

14.It is difficult to argue that the starting point adopted by the judge was wrong in principle or manifestly excessive, given the guidelines on sentence set out by the Court of Appeal in the leading case of Ngo Van Huy.  The potential loss to the victim of the theft was the very substantial sum of 1 million Japanese Yen.  The offence was clearly premeditated by three men acting in concert. The starting point of 18 months’ imprisonment would seem, on the authorities, to be appropriate.

15.I shall not take issue for present purposes with the judge’s decision to ignore the applicant’s previous similar conviction for theft, although it might be argued that he was perhaps somewhat generous in discounting it as an aggravating feature, given that it was that offence (however long ago it was committed) which had led to the deportation order, of which the applicant was in serial breach when he committed a similar offence.

16.In relation to the sentences for breach of the deportation order, these sentences were in line with the judgment of the Court of Appeal in the Joned Asri case.  Furthermore, there can be no real complaint about the ordering of the concurrent sentences for the breach of the deportation order offences to run consecutively to the sentence on the theft offence.  Finally, I can at this stage see no reasonable argument that the overall sentence of 40 months’ imprisonment imposed upon the applicant was either manifestly excessive or wrong in principle.

17.As Mr Daryanani correctly submits in relation to the applicant’s plea in relation to his wife’s illness, such circumstances of domestic hardship cannot deflect the courts from doing their duty in applying the law consistently and appropriately in serious cases.

Conclusion

18.The application is, therefore, refused.  The applicant is duly advised of his right to renew his application for leave to appeal his sentence to the Court of Appeal but also of the consequences of so doing, which may include a direction for the loss of any time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

Mr Prakash L Daryanani SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person