HKSAR v. Menshikov Alexander and Another

DCCC 131/2019

[2019] HKDC 981

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 131 OF 2019

-------------------------------

-------------------------------

---------------------------------------

REASONS FOR SENTENCE

---------------------------------------

Charges and pleas

1.Menshikov Alexander (D1) and Lavrov Iurii (D2) pleaded guilty before me to one count of theft (Charge 1).  Charge 1 took place on 23 November 2018 at “Chanel”, Shops 225 and 337, Pacific Place, No 88 Queensway, Central, Hong Kong.  Charge 1 concerned the theft by D1 and D2 of one handbag, valued HK$244,500, the property of Chanel Hong Kong Limited.

2.D2 also pleaded guilty before me to two counts of theft (Charge 2 and Charge3). 

3.Charge 2 took place on the same day at “Louis Vuitton” situated at Shop Nos 236 and 311A of the same shopping mall.  Charge 2 concerned the theft by D2 of a pair of shoes, valued at HK$75,000, the property of Louis Vuitton Hong Kong Limited.

4.Charge 3 took place on 24 November 2018 at “Louis Vuitton” situated at Shop Nos E2, 4, 6, 6A and ME1-7 and 9, Peninsula Hotel, Salisbury Road, Tsim Sha Tsui, Hong Kong.  Charge 3 concerned the theft by D2 of a handbag, valued at HK$29,000, the property of Louis Vuitton Hong Kong Limited.

The facts

5.The Amended Summary of Facts admitted by both defendants reads: -

“Charge 1

1. Ho Shuk-man (“PW1”) worked in a two-storey Chanel store at store 225 and 337, Pacific Place, 88 Queensway, Central. Around 4 pm on 23 November 2018, PW1 discovered that a black crocodile leather handbag (model: Boy Chanel, serial no, 1962423, valued at HK$244,500) went missing. She checked that there was no relevant sales record.

2. Store CCTV shows at 12:27 pm earlier that day, D1 and D2 walked down the stairs inside the store together. D1 was carrying two large paper bags, one in red and one in orange, while D2 was carrying a slant bag. There were communications between them. Then, as D2 went up to talk with a shopkeeper near the exit to draw her attention away, D1 simultaneously went to a rack inside the store and picked up a black handbag therefrom and placed it into his red paper bag. D1 left the store seconds later, but the store’s anti-theft alarm did not go off. D2 left the store 2 minutes later.

Charge 2

3. Au Siu-man (“PW2”) worked in a Louis Vuitton store at store 236 and 351A, Pacific Place, 88 Queensway, Central. At 3:30 pm on the same day, PW2 was informed that a pair of men’s brown leather shoes (model: Varenne Richelieu, size 5, valued at $75,000) went missing.

4. Store CCTV shows that D2 entered the store at 12:31 pm earlier that day. D2 tried out a few hats with the shopkeeper’s assistance. While the shopkeeper walked away to look for other items for D2, D2 picked up a shoe in the display area of the store. D2 was later seen putting something into his slant bag and left the store seconds later.

Charge 3

5. Lee Lai-yee (“PW3”) worked in the Louis Vuitton store in the Peninsular Hotel, Salisbury Road, Tsim Sha Tsui. At 9:15 am on 25 November 2018, PW3 found that a red handbag (serial no M50523, valued at $29,200) placed next to the staircase inside the store went missing.

6. Store CCTV shows that at 4:37 pm on 24 November 2018, a man took a red handbag at the store’s staircase and placed it in his slant bag. He left the store seconds thereafter.

Arrest and Caution

7. At 5:36 pm on 25 November 2018, D1 and D2 were found at the junction of Ashley Road and Peking Road, Tsim Sha Tsui. They were arrested bearing resemblance to the persons captured in the above CCTVs. A red paper bag with an interior tin foil layer was seized from D1. A slant bag with an interior tinfoil layer was seized from D2.

8. Upon search of D1-2’s abode in Chungking Mansion, a pair of Shoes, a red handbag and a black handbag were found hidden in different parts of the suspended ceiling of the premise. PW1-3 respectively confirmed that these items were the stolen goods in Charge 1-3.

9. In the subsequent video recorded interview, D1 said under caution that:-

(i) He arrived in Hong Kong from Russia on 22 November 2018 and reside with D2 in the same room in Hong Kong;

(ii) At 12:28 pm on 23 November 2018, he and D2 went to a big shopping mall, next to the Central MTR station;

(iii) He took the black handbag in Charge 1 from Chanel store and placed it inside a Valetino bag (red paper bag) and he left without paying;

(iv) He realized he had not paid for the bag when he left the store, but he did not return it for fear of being beaten up; and

(v) He stored the handbag in the suspended ceiling of his room.

10. In the subsequent video recorded interview, D2 said under caution that:-

(i) He arrived in Hong Kong from Moscow with D1 on 22 November 2018 and stayed in the same room with D1 in Hong Kong;

(ii) He stole the pair of shoes in Charge 2;

(iii) He stole the red handbag in Charge 3 inside a store.”

Antecedent statements

D1

6.D1, aged 45, is a Russian national.  He was educated up to university level in Russia.  He is a passenger transportation driver in Russia.  He lived with his wife and 2 sons (aged 17 and 9 respectively) in Russia before his remand.

7.D1 has no criminal record in Hong Kong.

D2

8.D2, aged 36, is a Russian national.  Educated up to high school, he worked as a driver in Russia.  He lived with his parents, his wife and a 9 years old daughter before his remand.

9.D2 has no criminal record in Hong Kong.

Mitigation

10.I have considered the mitigation of D1 made by Ms Mohamed and the mitigation of D2 made by Mr Murray.

Discussion

D1

11.I reject Ms Mohamed’s submissions that D1 came to Hong Kong as a tourist and he only formed the intention to steal once he was in Hong Kong.  It defies common sense that D1 who was financially strained, would spend his money on a tour to Hong Kong.  It is clear beyond doubt that D1 came to Hong Kong for the purpose of stealing.

12.Given the costs of travelling to Hong Kong from Russia and the expenses for staying in Hong Kong and flying back to his home country, I am sure D1 knew he was stealing an expensive handbag which could cover the expenses for his trip.  It defies common sense to suggest that D1 did not know the shop where he committed Charge 1 was one that a sold high end products.

13.Ms Mohamed submitted that the recovery of the handbag and the fact there was no loss to the shop should count as mitigating factors.  The fact that the handbag was recovered by the police had nothing to do with D1.  The handbag was hidden in the suspended ceiling of the room and was found by the police.  D1 did not surrender the stolen item to the police upon his arrest.  I reject Ms Mohamed submissions on this issue.

14.Ms Mohamed tried to turn the absence of some aggravating factors into positive mitigating factors:-

(i) D1 is not a persistent offender; and

(ii) There is nothing to suggest that the theft was part of a sophisticated international operation.

15.If D1 were a persistent offender, a higher starting point would be taken; the fact that he is not a persistent offender does not entitle him to a discount in sentence.

16.If the theft were part of a sophisticated international operation, a higher starting point is called for.  The fact that it was not does not entitle D1 to a discount.  In fact, the facts show that D1 and D2 flew to Hong Kong for the purpose of stealing high end luxurious goods, there was clearly some degree of planing and organization.

17.For the claim that there is no evidence to suggest that D1 was a professional thief.  The fact that a bag with tinfoil lining was used to avoid anti-theft device and the way the stolen handbag was hidden in the room show the professionalism of the theft.

18.For the reasons given in the preceding paragraphs, I reject also the claim that D1 did not know the value of the handbag when he stole it.

19.D1 is entitled to one third reduction for his guilty plea and clear record.  For the confession made by D1 after his arrest, it should be a factor subsumed within the one third reduction.

20.I am told D1 is suffering from AIDS and Hepatitis C.  From what Ms Mohamed told me, I am satisfied that D1 has been receiving proper treatment for his health issues during his remand.  Clearly D1 was aware of his health problem before he came to Hong Kong.  He should have thought twice before he embarked on his trip to Hong Kong to steal.  The medical report of D1 dated 6 May 2019 shows that his general health condition remains stable.

21.Ms Mohamed said D1 would like to return to Russia as soon as possible as he would like to look after his family.  Likewise, D1 should have thought twice and thought about the welfare of his family before he agreed to come to Hong Kong to steal.

22.Ms Mohamed drew my attention to the case HKSAR v Ho Yiu Man DCCC528/2015, for a theft charge which concerned the theft of a handbag valued at $253,000, a starting point of 1 year and 6 months was adopted by the learned sentencing judge (Charge 3).  I do not find the case helpful.  In the first place, the learned sentencing judge accepted that there was a possibility that the defendant did not know how valuable the handbag was, a contention which I reject in the present case,  Furthermore, the present case was aggravated by the following factors: (i) D1 committed Charge 1 in joint enterprise with D2; (ii) D1 and D2 flew to Hong Kong to commit the offence; and (iii) the use of a bag with tinfoil lining.  In my judgment, the facts of the present case are more serious than the facts revealed in Ho Yiu Man.

D2

23.I agree with Mr Murray that the key mitigation is the timely guilty plea tendered at the first available opportunity.  D2 should be given one third reduction for his plea and clear record.

24.As for the admissions made by D2 after his arrest, the credit for remorse and co-operation is subsumed in the one third discount. 

25.Mr Marray said D2 would like to return to Russia as soon as possible as he would like to look after his daughter.  Likewise, as in the case of D1, D2 should have thought twice and thought about the welfare of his daughter before he agreed to come to Hong Kong to steal.

26.Mr Marray submitted that all the stolen goods had been recovered.  The fact that the handbag and the pair of shoes were recovered by the police had nothing to do with D2.  The stolen goods were hidden in the suspended ceiling of the room and were found by the police.  D2 did not surrender the stolen items to the police upon his arrest. 

27.I reject D2’s claim that he intended to give the stolen items away as gifts in Russia, I have considered the case of HKSAR v Lee Lei Lei CACC206/2016 submitted by Mr Marray.

28.In my judgment, Charge 1 calls for a basic starting point of 18 months’ imprisonment, in the light of the following aggravating factors, namely:-

(i) D1 and D2 flew to Hong Kong from Russia to steal;

(ii) D1 and D2 committed the offence in a joint enterprise; and

(iii) The degree of professionalism as demonstrated by the use of a bag with tinfoil lining and the way the handbag was hidden in the room,

an enhancement of 6 months is called for. I adopt a starting point of 2 years’ imprisonment for Charge 1. D1 and D2 is each entitled to one third reduction for the reasons given.

29.On Charge 1, I sentence D1 and D2 each to 16 months’ imprisonment.

30.In my judgment, a basic starting point of 12 months imprisonment is appropriate for Charge 2 and Charge 3, in the light of the following aggravating factors, namely:-

(i) D2 flew all the way to Hong Kong from Russia to steal; and

(ii) The degree of professionalism as demonstrated by the use of a slant bag with tinfoil lining and the way the stolen goods were hidden in the room,

an enhancement of 3 months is called for. I adopt a starting point of 15 months’ imprisonment for Charge 2 and Charge 3. D2 is entitled to one third reduction for the reasons given.

31.On Charge 2 and Charge 3, I sentence D2 to 10 months imprisonment for each offence.

Totality for D2

32.In my judgment, a total sentence of 26 months’ imprisonment should adequately reflect the overall criminality of the two offences committed by D2.

33.I order 4 months of D2’s sentence for Charge 2 shall run consecutively to his sentence for Charge 1; I further order that 4 months of the sentence for Charge 3 shall run consecutively to the sentences for Charge 1 and 2.

34.D2 has to serve a total term of 24 months’ imprisonment.