HKSAR v. Valencia Suarez Marlon and Another

DCCC 1039/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1039 OF 2016

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Reasons for Sentence

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1.The two defendants have pleaded guilty to the charge of attempted theft, the location of the attempt being at the Harbour Road Café by the Hong Kong Convention and Exhibition Centre in Wan Chai.

2.The facts, which the defendants have agreed, show that on 18 September 2016, plainclothes police officers conducted an anti‑theft operation at the Hong Kong Convention and Exhibition Centre, and they were there because at that time the Jewellery and Gem Fair was being held at that centre.

3.The presence of the two defendants was noted by the plainclothes police officers.  The 1st defendant carried a shoulder bag, and the 2nd defendant carried a shoulder bag and a suitcase, and they were seen to follow some Asian men out of the centre and thought to be acting furtively, so from that point on, both defendants were kept under observation.

4.Eventually, they returned to the Harbour Road Café.  They continued to be put under observation whilst they were there in the café.  They eventually sat at the same table, and when they sat there, a Mr Hamada, who is the victim in this case, was seen to sit at a table behind the 1st defendant.  The victim had a bag.  The bag contained the following: cash of $300,000; HK$7,340; four pairs of earrings which were valued at $17,844; and another bag containing a pair of earrings and pearl valued at $7,586, and that was kept at the right side of his chair on the floor.

5.The defendants then were seen to exchange some conversation.  They moved their table back towards the victim's table.  The 2nd defendant moved his suitcase behind the victim, and then the 1st defendant was seen to kneel down and stretch his right foot to lift up the bag with the tip of his right toe.  While the 1st defendant was moving his right foot towards himself, the bag fell down from his right shoe.  The victim then looked to his bag and took it back to his right side.

6.The police, having seen this, then arrested the 1st and 2nd defendants for an attempted theft.  Both defendants were then taken to Wan Chai Police Station, and various currencies were found on them.

7.The defendants both made video-recorded interviews where they admitted their presence at the location.  They both said they had come to Hong Kong for sightseeing, and the 1st defendant said he had been drinking that day and had drunk a considerable amount of beer.  The 2nd defendant also said he was there for sightseeing.  He had also drunk some beer that day.

8.Both defendants admit in the facts that they jointly attempted to steal the bag and its contents from the other person. Also, it is noted the defendants came to Hong Kong as visitors on 23 and 24 July 2016, which is almost two months before this incident.

9.As far as their backgrounds are concerned, they are both here from Colombia.  The 1st defendant is aged 31, Colombian, unemployed at the time of his arrest, and has no family in Hong Kong.  The 2nd defendant is aged 39 and also from Colombia.

10.In mitigation some more of their background was set out by their representative.  The 1st defendant is single and lives with his mother and three younger brothers.  He had a job selling ladies’ underwear in Colombia earning US$300‑odd a month.  The 2nd defendant is said to be aged 40, according to his representative.  He has a girlfriend, who has her own child, and he has a 9-year-old daughter as well, and he supports them through his work as a maintenance technician.

11.Both defendants are said to have come here in July.  They are both remorseful.  They have both written mitigation letters to the court.  They have prayed in aid as to the fact they both have clear records.  Their entry to Hong Kong in July means that the court should not be in a position to draw the inference they came here to commit the offence, so there cannot be said to be an international dimension in this crime.  They are both remorseful.

12.This all said, the offence itself was not particularly sophisticated and does not show any great planning.

13.There is of course no guideline sentence for an attempt to steal, because the situations in which it can be committed are extensive.  There are cases that relate to thefts or attempted thefts that occur within the Hong Kong Jewellery Fair where, in the past, diamonds and suchlike items have been targeted by people who go to that location, and for offences that specifically target items such as high-value items such as jewellery, starting points of up to 3 to 4 years have been imposed.

14.They do not offer much guidance in relation to this offence.  The offence was committed outside the Jewellery Fair in the café of the Hong Kong Exhibition Centre, and the defendants were targeting the luggage of a person, rather than specifically targeting jewellery, although jewellery was found to be present in the luggage, and it could be expected that people in the café would be proceeding in to the fair or coming from the fair, and if they were doing so, then they would most likely have jewellery in their property.

15.I have also been referred to the case of HKSAR v Aguilar Garcia Milner Javier 485/2012, which involves visitors to Hong Kong stealing bags left unattended by their owners in restaurants and cafés, where the judge who sentenced that case saw some similarities to the offence of or the method of offending of theft by way of pickpocketing, where sentences of between 9 and 18 months’ imprisonment after trial have been said to be appropriate for theft in circumstances such as pickpocketing, and the starting points of between 9 to 18 months of course can be increased having regard to various aggravating factors.

16.I bear in mind that case.  It does appear to me there are circumstances similar to pickpocketing in this offence.  But I do think that the choice of location for this offence is important when determining the appropriate starting point.  The defendants have chosen to commit this offence in the café of the Convention and Exhibition Centre when the Jewellery and Gem Fair was being held at the centre.  It would appear to me quite obvious that in the choice of location and the choice of persons who attend that café and the choice of targeting their luggage, that they are hoping at least to find that valuable items would be found in that luggage and that they could target people who would be attending the fair, and I consider that to be a substantial aggravating factor when determining the starting point for sentence.

17.The aggravating factors then in this offence would be the fact that the defendants were acting together, and also the location they chose in which to commit the crime.  If one took the ordinary starting point for an offence such as this and saw it as akin to a pickpocketing offence, then one would choose a starting point of perhaps 15 months’ imprisonment and then add a further 12 months for the two other aggravating factors, and that gives a starting point for sentence of 27 months for each defendant.

18.I consider, having regard to all the overriding factors of this case, that that would be an appropriate starting point to choose for this offence, so I will take a starting point of 27 months for each defendant.

19.They are both entitled to a one-third discount from that starting point, which leads to a final sentence of imprisonment of 18 months’ imprisonment for each defendant on this charge.