HKSAR v. Firdaus Alamsa and Others

DCCC 519/2025

[2025] HKDC 1764

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 519 OF 2025

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REASONS FOR SENTENCE

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1.D1, D2 and D3 are jointly charged with one count of theft of 200,000 Japanese Yen (equivalent to around HKD 10,000)  on 19 Nov 2024, contrary to section 9 of the Theft Ordinance, Cap 210 (Charge 1). D1 is further charged with one count of breach of deportation order, contrary to section 43(1)(a)  of the Immigration Ordinance, Cap 115 (Charge 2). All three defendants pleaded guilty to the charges they faced.

Facts

2.The three defendants are Indonesians holding Indonesian passports.

3.A deportation order dated 27 January 1994 was issued to D1 according to which D1 was required to leave Hong Kong and was prohibited from being in Hong Kong at any time thereafter. Pursuant to the said deportation order, D1 was deported to Jakarta on 18 February 1994. The deportation order remains in force and has never been rescinded.

4.D1, D2 and D3 entered Hong Kong via the airport on 18 November 2024.

5.At around 3:25 p.m. on 19 November 2024, the victim of Charge 1 (a Ms Lam, “PW1”)  walked to a cake shop in North Point (“the Cake Shop”)  to purchase some bread, carrying with her 200,000 Japanese Yen inside an envelope in her bag (being the Stolen Property of Charge 1)  after having withdrawn the money from the bank earlier that day. The CCTV in the vicinity captured the three defendants tailing PW1 from the pedestrian crossing at North Point Road to the Cake Shop. At the material time, the Cake Shop was crowded. The CCTV inside the Cake Shop captured the commission of Charge 1. At the time, D2 pickpocketed PW1 while she was paying for her bread at the cashier; D1 was wandering inside the Cake Shop to act as a lookout while D3 stayed close to D2 the whole time; PW1 felt that D2 had touched her. The three defendants left the Cake Shop shortly afterwards. When PW1 tried to take out her wallet, she discovered that the zipper of the front pocket of her crossbody bag was open and the Stolen Property was missing. PW1 reported the case to the police.

6.On 26 Nov 2024, the three defendants were arrested in North Point.

7.Under caution,

(1)  D1 admitted, inter alia, that he had become acquainted with D2 and D3 four months prior to that in Jakarta and they had come to Hong Kong together on 18 November 2024; they had stayed together in a rented flat in Mong Kok; they had been captured by the CCTV in the Cake Shop on 19 November 2024.

(2)  D2 admitted, inter alia, that she had come to Hong Kong together with D1 and D3 on 18 November 2024 and they had lived together during their stay in Hong Kong.

(3)  D3 admitted, inter alia, that he had come to HK together with D1 and D3 on 18 November 2024 and they had lived together during their stay in Hong Kong; they had been captured by the CCTV in the Cake Shop on 19 November 2024.

8.The three defendants agree that at the material time at the Cake Shop they stole 200,000 Japanese Yen belonging to PW1. D1 agrees that at the material time, in Hong Kong, he, being a person in respect of whom a deportation order was in force, was in Hong Kong in contravention of the said order.

Background and mitigation

D1

9.D1 is aged 59. He is married with 2 children, aged 21 and 23. He suffers from stomach ulcers and hypertension and is being treated with medication. He was sentenced to 5 months’ imprisonment for theft from a vehicle in 1993; upon his release he was deported from Hong Kong.

10.The defence agrees that during the commission of Charge 1, D1 was in close proximity to D2 and D3 inside the Cake Shop where D2 took the money (which had been placed in an envelope)  from the victim’s bag. The defence asks the court to consider that under caution, D1 stated that he had come to Hong Kong with D2 and D3 for the purpose of shopping. As to Charge 2, it is admitted that D1 had arrived in Hong Kong from Indonesia on 18 November 2024 and at the time he was still under the conditions of the deportation order issued in 1994; D1 had used another name to enter Hong Kong.

11.The defence refers to the case of HKSAR v Pham Bich Thuy [2010] 2 HKLRD 1177 and submits that 12 to 15 months’ imprisonment is appropriate after trial for a first time offender of pickpocketing (Charge 1). As to Charge 2, the defence refers to HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762 and submits that for a charge of breach of a deportation order, a sentence of 18 months’ imprisonment after plea is appropriate.

12.The defence submits that D1 pleaded guilty at the earliest opportunity and should be given 1/3 discount. The defence accepts that Charge 1 and Charge 2 are distinct offences and thereby it would not be expected for the sentences to run concurrently; however, Charge 2 concerns a deportation order issued over 30 years ago with no transgressions during that period, and this should be taken into account when considering totality. The defence further submits that there is insufficient evidence in this case to support a finding that D1 came to Hong Kong to commit the offence of Charge 1; nor has the prosecution presented their case on this basis. However, D1 accepts that there is an “international element” regarding Charge 1 as the three defendants committed the offence the very next day after their arrival in Hong Kong from Indonesia.

D2

13.D2 is aged 37. She attained Primary 6 education level in Indonesia and has been unemployed since 2019. D2 was separated from her former husband in 2019. Prior to her arrest in Hong Kong, she was living with her child who is currently aged 2 in Indonesia. She has a clear record and has been detained since her arrest on 26 November 2024. She asks for leniency in her mitigation letter.

14.Defence counsel submits that it is well established that the sentencing guideline for theft by pickpocketing is 12 to 15 months’ imprisonment after trial for a first-time offender, citing HKSAR v Ngo Van Huy [2005] 2 HKLRD 1. Defence counsel further submits aggravating features include whether the offence was committed in a crowded place and whether the offence was committed jointly with others; and the Court of Appeal has particularly made an observation in respect of pickpockets from overseas (whether individually or in a group)  who come to Hong Kong to carry out this type of activity. Defence counsel also refers to HKSAR v Chiu Suet Yee, Angel CACC 105/2010 regarding the factors to consider when determining the starting point.

15.Defence counsel submits that D2 appreciates the gravity of the present offence which warrants an immediate custodial sentence; the defence also agrees this case has several aggravating features, including (1)  the offence location being a crowded place, (2)  the offence being committed jointly by D1-3, and (3)  all three defendants having arrived in Hong Kong from Indonesia the day before the offence. However, this case did not involve any use of weapon; nor was the offence committed in conjunction with another offence. Moreover, no injury or threat was caused to the victim. The defence asks the Court to consider D2’s timely plea, which shows her remorse. It is submitted that D2 has learned a bitter lesson; she has missed her father’s funeral in Indonesia due to her being on remand. D2 asks for leniency and has written a mitigation letter expressing her remorse.

D3

16.D3 is 45 years old. He was born in Indonesia and has lived there his whole life. He has attained a Form 3 education level. He is married with three children: two girls now aged 18 and 12, and a son aged 9. His wife works at home and looks after the family. D3 is the sole breadwinner. He has worked as a salesman selling clothing in Indonesia. As his family depends on him financially, D3 is anxious to return to Indonesia as soon as possible. He has no criminal record in Indonesia and is of clear record in Hong Kong. This was his first time visiting Hong Kong. He asks for leniency in his mitigation letter.

17.The defence submits that no incriminating evidence was found during the search of the defendants’ flat after their arrest. According to D3’s instructions, he was not aware of a plan to come to Hong Kong to commit crimes. He came with the other defendants for tourism. However, after the theft took place, he agreed to deal with the property as owner, and he pleaded guilty on this basis.

18.Defence counsel for D3 also cites Ngo Van Huy and Chiu Suet Yee, Angel. It is submitted that the circumstances of the theft were unsophisticated, involving a single momentary act of taking an envelope of banknotes from PW1’s crossbody bag; the value of the banknotes was around HKD 10,000; no violence or threat of violence was involved; PW1 was not a person of vulnerability; and the offence did not involve an irreplaceable item or mobile phone. Thus, the defence is of the view that 12 to 13 months’ imprisonment should be adopted as the starting point.

19.The defence acknowledges that the case has the aggravating features of (1)  having occurred in a crowded place, (2)  having been committed in conjunction with others, and (3)  having an international element. Taking into account the relevant aggravating factors, it is submitted that an increase of 9 to 10 months’ imprisonment from the initial starting point would be appropriate. The defence refers to the case of HKSAR v Indra Irawan CACC 80/2014 and submits that the present case bears a strong resemblance to the circumstances therein.

Sentence

20.I bear in mind that D2 and D3 are of clear record. D1’s criminal record was in 1993; I shall not take into account this record in sentencing him. I have considered the mitigation submissions of the defendants, the facts of the case, and the relevant authorities. I am of the view that the culpabilities of the three defendants as to Charge 1 are the same.

Charge 1 (for all three defendants)

21.As accepted by the defence, the starting point for a first offender of pickpocketing should be 12 to 15 months’ imprisonment. I am of the view that the appropriate starting point for this case is 12 months’ imprisonment given that the value of the stolen property was not particularly high, PW1 was not a “vulnerable” victim, and the theft was not a sophisticated one: see Chiu Suet Yee, Angel.

22.As to aggravating factors, all of the defendants agree that these three factors are present in this case: (1)  the theft was committed in a crowded/busy shop and area of Hong Kong; (2)  the defendants acted jointly and in concert in committing the offence; (3)  the defendants had entered Hong Kong only one day before the offence was committed (and as such there is an “international element” to the commission thereof). Regarding factor (3), I refer to the case of HKSAR v Tan Hong Sheng CACC 238/2005, wherein the Court of Appeal stated that:

“26. The fact that the applicant and his co-accused committed the offence the very next day after they arrived in Hong Kong from the Mainland, contrary to the applicant’s submission, is indeed a most serious aggravating factor as rightly identified by the judge."

23.I am of the view that for each of the three aggravating factors set out hereinabove, 3 months enhancement of sentence is appropriate, i.e., the sentence is thus enhanced by 9 months, to one of 21 months’ imprisonment.

24.The defendants shall receive 1/3 discount in light of their guilty pleas. I do not see any other reason to further reduce the sentence for any of the defendants. Thus, the sentence for Charge 1 for all three defendants is 14 months’ imprisonment.

Charge 2 (for D1)

25.In light of the relevant authorities (including HKSAR v Ta Dinh Son CACC 348/2013), the appropriate starting point should be 27 months’ imprisonment. Due to D1’s guilty plea, this is reduced to 18 months’ imprisonment. I do not see any other reason to further reduce the sentence. Thus, D1’s sentence for Charge 2 is 18 months’ imprisonment.

Totality (D1)

26.Although Charges 1 and 2 are different in nature, in light of the totality principle, I order 10 months of D1’s sentence for Charge 2 to be consecutive (in other words, 8 months to be concurrent)  to his sentence for Charge 1. D1 is thus sentenced to 24 months’ imprisonment.

Conclusion

27.D1 is sentenced to 24 months’ imprisonment. D2 is sentenced to 14 months’ imprisonment. D3 is sentenced to 14 months’ imprisonment.