HKSAR v. Hernandez Barrios Miguel Cecilio

DCCC 478/2019

[2020] HKDC 246

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 478 OF 2019

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

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

Reasons for Sentence

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

Charges

1.The Defendant pleads guilty to 3 charges of theft. 

Charge 1

2.On 2019-03-27, PW1 arrived Hong Kong as a tourist. At around 1835 hours on the same day, PW 1 arrived Guangdong Hotel Hong Kong, 18 Prat Avenue, Tsim Sha Tsui (“Hotel”). When PW1 was making enquiry with a staff near the reception area in the lobby, he placed a black Gucci handbag (“Gucci bag”) containing a notebook computer (“Notebook”) on top of his luggage. It was left unattended. Shortly after, PW1 found the Gucci bag and the Notebook missing.

3.CCTV installed in the lobby of the Hotel captured D consciously preyed on PW1’s negligence and seized the opportunity to take away the Gucci bag when PW1 was making the enquiry with the staff. D was seen left the Hotel once he took away the Gucci bag.

Charge 2

4.At around 1030 hours on 2019-03-28, PW2, a deliveryman of Federal Express (Hong Kong) Limited, was to deliver goods outside Room 302 (“Room”), Block A, Focal Industrial Centre, 21 Man Lok Street, Hung Hom, Kowloon, in Hong Kong.

5.His trolley loaded with goods including a white parcel (“Parcel”) was left unattended outside the Room when he temporarily left for delivery. Shortly after he returned to the scene, the Parcel on the trolley was no longer there. It was confirmed by the recipient of Parcel that there was some jewelry inside the Parcel.

6.CCTV installed in the vicinity captured D consciously hid himself from being discovered by PW2 when he approached PW2’s trolley along the corridor outside the Room and seized the opportunity to take away the Parcel when it was left unattended.

Charge 3

7.At around 1645 hours on 2019-03-29, PW3 was the only shop-keeper of Jingtao Co. Limited situated at Shop 136A-B, 2/F Cke Shopping Mall, 40 Nathan Road, Tsim Sha Tsui (“the Shop”). D entered the Shop and was received by him.

8.D requested for a look of a bottle of wine locked inside a showcase. PW3 complied and knelt down to take the wine out from the showcase, during which D took away a ‘Richard Mille’ diamond wristwatch (“Watch”) from the upper deck of the showcase. D immediately placed the same into the pocket of his pants. D later left the Shop without purchasing anything.

9.CCTV installed inside the Shop captured D took away the Watch from the showcase when PW3 knelt down to get him the wine.

Property Value

10.The Gucci bag was valued at HK$10,369.  The Notebook was valued at HK$15,600. The jewelry contained in the Parcel was valued at USD$13,679 (i.e. around HK$106,700). The Watch was valued at HK$1.17 million.  The total value of all was HK$1.3 million.

Arrest and Investigation

11.On 2019-03-30, D was arrested outside his residence located at Flat B4, 10/F, Appeal Hostel, Chungking Mansions, Kowloon, Hong Kong (“Hostel Premises”).

12.Upon search, D’s clothes, which were worn during the commission of the above offences, were seized inside the Hostel Premises.

13.A FedEx Express Air Way bill dated 2019-03-29 showing that some jewelry and handbag were sent to London was seized inside the Hostel Premises. Key cards accessing to the Hostel Premises were also seized.

14.Photos of the Gucci bag and the Watch and invoices contained inside the Parcel were found in D’s mobile phone.

15.Under caution, D remained silent. In cautioned video-recorded interview (with Spanish interpretation), D made admission to the offences under Charges 2 and 3.

16.D later surrendered the Watch to the Police. Under caution, he admitted that he had all along kept the Watch inside his underpants.

17.In the 2nd video-recorded interview (with Spanish interpretation) was conducted with D on 2019-04-01 in which he made admission under caution to the offences under Charges 2 and 3. D stated, inter alia, the following: -

i) In relation to Charge 2, D saw the Parcel on the ground and took it away.

ii) He found some jewelry inside the Parcel after opening it and later sent all those jewelry to his friend in London via FedEx Express. The said FedEx Express Air Way bill dated 2019-03-29 seized was the receipt for the shipment.

iii) D denied committing the offence for Charge 1. He bought a black Gucci bag from an Indian Male inside Chungking Mansions at HK$50 and shipped the same back to London together with the jewelry.

18.Pursuant to the tracking number of the parcel shown on the said FedEx Express Air Way bill, it was confirmed that the parcel has arrived London and was intercepted. It was currently retained by the UK Customs. A black Gucci bag and some jewelry were found inside the parcel.

19.On 2019-03-27, D dishonestly appropriated the Gucci bag and the Notebook belonging to PW1 with the intention of permanently depriving the other of them.

20.On 2019-03-28, D dishonestly appropriates the Parcel containing some jewelry belonging to Federal Express (Hong Kong) Limited with the intention of permanently depriving the other of it.

21.On 2019-03-29, D dishonestly appropriates the Watch belonging to Jingtao Co. Limited with the intention of permanently depriving the other of it.

Mitigation

22.D is 57 years of age, a Mexican national.  He has a clear record in Hong Kong.  He claims to be a merchandizer and have 2 teenage children dependent on him.  He claims to have come to Hong Kong to look for a girlfriend without success.  

23.It is accepted by the prosecution for sentencing purpose that the Gucci bag, the Notebook and the jewelry were all recovered by the British police pending collection by the Hong Kong counterpart.   

Sentencing considerations

24.In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal laid down a guideline sentence of 12 to 15 months for pickpocketing after trial for a first-time offender. 

25.The present offences are all akin to pickpocketing. 

26.As regards Charge 1, the Gucci Bag and the Notebook had a total value of HK$25,969.  He had lied to the police that the Gucci Bag was bought for HK$50 in Chung King Mansion.  Personal data stored in the Notebook would be prone to illegal use or at least breach of privacy.  I take a starting point of 15 months. After a one-third discount for the plea of guilty, the sentence is 10 months for Charge 1.  Despite the said lie and the privacy issue, I deduct 1 month for the recovery of both items from the parcel shipped to London (together with the jewelry the subject-matter of Charge 2).  The sentence is 9 months. 

27.As regards Charge 2, the parcel contained jewelry valued at around HK$106,700.  From the conventional starting point of 15 months, I add 3 months to it to reflect such value.  The starting point is 18 months.  After the one-third discount for the plea of guilty, the sentence is 12 months.  He explained to the police that the FedEx airway bill seized in his hostel room covered the said jewelry.  That apparently saved time for the police to recover the parcel shipped to London and had it retained by the customs.  I reduce his sentence by 2 months.  The sentence is 10 months for Charge 2. 

28.As regards Charge 3, the diamond watch was valued at HK$1.17 million.  It was his target on display in the showcase, not an accidental find.  I take a starting point of 30 months.  After a one-third discount for the plea of guilty, the sentence is 20 months.  In the course of police investigation, he surrendered the watch kept in his underpants.  Although the police would certainly discover it in the body search after his arrest or detention, his voluntary act actually saved the police some time.  I reduce the sentence by 1 month.  The sentence is 19 months for Charge 3.

29.The 3 offences each took place one day after the other.   They were unrelated thefts.    However, I make a totality adjustment as follows:

(1) 19 months to be served on Charge 3;

(2) 4 months for Charge 1 to be served consecutive to other charges;

(3) 4 months for Charge 2 to be served consecutive to other charges.

30.The total sentence is 27 months.