HKSAR v. Patarroyo Jimenez Guillermo

DCCC 324/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 324 OF 2016

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REASONS FOR SENTENCE

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1.The defendant has been convicted after trial of one count of attempted theft, contrary to section 9 of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200. Briefly, the offence took place on 6 February, 2016 shortly after 8 p.m. at the Kwai Chung Plaza, a crowded shopping mall. It was a Saturday evening and shortly before Chinese New Year. The female, PW1 herein, was standing near the “Wo Mei Tin” snack shop waiting for her friend who was waiting for the food she had bought from the snack shop. The defendant stood close behind PW1 and inserted his hand into her coat pocket and tried to steal her smartphone which was placed in the right front pocket of the coat she was wearing. She felt her smartphone being taken out of her pocket – she stepped to her left and turned her body to her right and saw the defendant standing very close to where she had been standing. The defendant was not able to take the smartphone out of PW1’s coat pocket. PW3, a police officer on plainclothes patrol at the material time, had observed the defendant’s act and he subsequently arrested the defendant. Under caution, the defendant denied taking the phone. The theft here is the type of theft commonly referred to as pickpocketing.

2.The Antecedent Statement provided by the Prosecution shows that the defendant is now aged 61 years. He is from Columbia.  He arrived in Hong Kong on 11 July, 2010 and lodged his non-refoulement claim in September 201l. He is unemployed in Hong Kong.  Although in the Antecedent Statement it was recorded that he had received primary school education in Columbia, I was told by Mr. Cahill that in fact he had only received 6 months of primary education.  The Prosecution took no issue on this.

Previous Convictions

3.The Defendant’s criminal record dates back to 19 January, 2011. He has 6 previous convictions, 5 for theft and 1 for ‘conspiracy to theft. Of the 5 convictions for theft, 3 are marked on his criminal record as pickpocketing offences.  His last conviction was on 15 February, 2016 for theft and it is marked as a pickpocketing offence – he was sentenced to 12 months’ imprisonment, which he is currently serving and Mr. Cahill informs me that he will be discharged from prison in October, 2016. Mr. Tracey has provided the Court with the ‘Amended Brief facts of case’ in respect of his most recent conviction – the offence date was 31 December, 2015 – the present offence was committed while he was on bail. Mr. Cahill has confirmed this.

4.Mr. Tracey has provided the Court and Defence Counsel with a list of sentencing authorities setting out the principles to be considered, which authorities I have considered. The Defence had no objection to this.

Mitigation

5.In mitigation, Mr. Cahill asks the Court to be lenient and bear in mind the totality principle of sentence.  He also submitted that this was a failed theft attempt, the Defendant was a man with little education, and this was more an opportunistic crime – no weapon was used nor was there any evidence of a syndicate involved.  He asked the Court to be merciful.

Sentencing Considerations

6.The Courts when approaching sentencing in cases such as this look at the guidelines laid down in previous cases.  There is clear guideline laid down in the case of HKSAR v. Ngo Van Huy, [2005] 2 HKLRD 1, that the usual starting point is 12 – 15 months’ imprisonment after trial for a first offender where there are no mitigating or aggravating features. The starting point can be adjusted upward for the presence of aggravating features such as the presence or use of a weapon or tool, where the offence is committed in a place in which the public is at particular risk, where the accused commits the offence in conjunction with another, where the accused is a repeat offender or a persistent one, etc.

7.The defendant is not a first offender. Although in HKSAR v. Ngo Van Huy, supra, the Court of Appeal held the starting point to be 12 to 15 months’ imprisonment for a first offender after trial, in a more recent decision of the Court of Appeal, differently constituted,  HKSAR v. Wong Kang Sun,[2014] 1 HKLRD 622,  Macrae JA, in delivering the judgment of the Court said:

“13. In our judgment, if one looks at the circumstances of the offence itself (leaving aside aggravating features such as the offender’s antecedents), and if one accepts the way the Judge was prepared to characterize this example of the offence, then it is difficult to see that an initial starting point at the top of the 12 to 15 months’ imprisonment range was appropriate. If one adopts, as the Judge expressly said he did, a starting point of 15 months’ imprisonment simply because a defendant is a recidivist, then one must be careful that one does not double count this factor when assessing any enhancement of sentence by virtue of the defendant’s criminal record.”

8.Here, although no weapons were used, clearly there was planning. The defendant lived in Shamshuipo but went by MTR to a crowded shopping mall at Kwai Chung on a Saturday evening just before Chinese New Year. He had been looking at the smartphone protruding from PW1’s coat pocket. It was the evidence of PW3 that his attention was drawn to the defendant because he saw him gazing at PW1’s coat pocket from which the smartphone was protruding.  Although no tools were used, the defendant moved closer to the back of PW1 and transferred his outer garment from his left arm to his right wrist and covered his right hand with it before he inserted his hand into PW’s coat pocket to try to steal the smartphone that was protruding from the coat pocket and easily visible. The purpose was to avoid his action of putting his hand into PW1’s coat pocket from being observed. I accept what Mr. Cahill said that there was no evidence of any syndicate being involved, but in my view, there was a degree of sophistication in what the defendant did. I would not say it was ‘opportunistic’. Bearing the circumstances of the offence in mind, the appropriate starting point in my view is one of 15 months’ imprisonment.  The offence was committed in a crowded public place – a shopping mall on a Saturday evening just before the Chinese New Year. This calls for an enhancement of the original sentence of 15 months’ by 3 months.  The defendant is a repeat offender for these kind of offences – his last three convictions are pickpocketing offences, and he is currently serving a sentence of 12 months’ imprisonment imposed on 15 February, 2016 for a pickpocketing offence and I am told that his earliest release will be in October, 2016.  Clearly the defendant is a recidivist. Given the record of the defendant, I am satisfied that the starting point should be further increased by 9 months.

9.The present offence was committed while the defendant was on bail for another pickpocketing offence – TWCC3/2016 refers. He was convicted and sentenced to 12 months’ imprisonment on 15 February, 2016 – the offence date was 31 December, 2015. The present offence was committed on 6 February, 2016.   In R. v. Cheung Chi-man, [1989] HKLR 88 at p. 89, it was held that if a person commits an offence when he is already on bail for another offence, this may ‘count strongly against him’. In HKSAR v. Yuen Gang-shing, CACC 303/1997, it was said ‘the commission of any offence whilst on bail is unquestionably an aggravating factor to be taken into account.’ The Court of Appeal, in HKSAR v. Leung Ting Fung & Anor [2015] 1 HKC 290 dealt with this in their judgment at   p.296:

“28. This appeal raises the question of how offences committed on bail should be treated and whether sentences imposed in respect of them must always be ordered to be served consecutively to any sentence the offender is already serving

29, The starting point to answering this question is to determine how the fact that an offence has been committed while the offender was on bail, should be treated. It has long been recognized that the fact that offences are committed whilst on bail is an aggravating feature of those offences which entitles the judge to enhance his sentencing starting point for them. (See HKSAR v. Yuen Gang Shing [1997] HKCU 330; (CACC 303/1997, Liu, Mayo JJA and Stuart-Moore J. 12 November 1997, (unreported)).

30. The reason it is an aggravating feature is because, in terms of the offence, it demonstrates a serious disregard for the law and, in terms of the offender, it evidences a persistence in offending. Both of these matters add to the culpability of the offender and like any aggravating feature should be dealt with by an enhancement of the starting point.”

And later in the judgment:-

“33. ………….Certainly, the fact that offences are committed whilst on bail lends emphasis to the obvious conclusion that they are quite separate from the offences for which the offender is currently serving a sentence of imprisonment, but nevertheless in imposing sentence it remains necessary to have regard to the totality principle.

34. We are satisfied that the correct approach, consistent with sentencing principle, is to regard the fact that an offence was committed whilst on bail as a factor seriously aggravating that offence and to reflect the presence of this seriously aggravating factor by enhancing appropriately the starting point for sentence.”

10.That the defendant herein committed the present offence whilst on bail for a similar offence is in my view an aggravating factor warranting a further enhancement of the starting point by a further 2 months. 

11.The defendant entered Hong Kong lawfully on 11 July, 2010. He made a non-refoulement claim in Hong Kong in September, 2011.  He is a torture claimant permitted to remain in Hong Kong under a recognizance issued by the Director of Immigration.  In HKSAR v. Sandagdorj Altankhuyag & Anor, [2014] 1 HKC 206, the Court of Appeal held, at p.212:

“20. The second matter which stands out from the facts of this case concerns the 2^nd appellant. He was a torture claimant who, like many in his position, was not lawfully in Hong Kong but was nevertheless allowed to remain at liberty by virtue of a recognizance issued by the Director of Immigration whilst his claim was being processed. Yet, despite the hospitality extended to him, by the authorities and people of Hong Kong, he chose to abuse the privilege by targeting an area well known as a tourist destination, and one that is frequented by significant numbers of tourists and locals alike, in order to steal.

22. We do not say that someone sharing the 2^nd appellant’s status would aggravate his position in every case or in every crime. Obviously, there are crimes committed by refugees or torture claimants which do not affect the community at large or have any significant impact on Hong Kong’s reputation. …..In our view, this was a serious aggravating feature which we would add to those identified by the trial judge.”

The defendant is permitted to remain in Hong Kong under a recognizance issued by the Director of Immigration. He chose to abuse the hospitality extended to him by going to a busy shopping mall frequented by locals and steal therein. In my view, this is a serious aggravating feature warranting an enhancement of the starting point by a further one month.

12.The defendant has been convicted after trial – he has shown no remorse.  In my view, there are no further mitigating factors to warrant reducing the sentence. The defendant is therefore sentenced to 30 months’ imprisonment on the charge.

13.I do bear in mind the totality principle of sentence.  The defendant is currently serving a sentence of 12 months’ imprisonment and will be discharged from prison in October 2016.  Having taken into account the totality principle of sentence, I shall order that 2 months’ of the 30 months’ imprisonment be served concurrently with the term he is presently serving and 28 months’ be served consecutively.