HKSAR v. Romero Gonzales Daniel Alfredo and Others
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DCCC 1320/2009 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1320 OF 2009 -----------------
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-------------------------- Reasons for Sentence -------------------------- Charges 1.D1 to D4 plead guilty to the following thefts:
Facts of 3rd Charge (against D1 to D4) 2.In the morning on 2nd November 2009, the police mounted an anti-theft operation in Wanchai. The 4 Defendants were seen talking among themselves and acting suspiciously. They entered Delifrance in C.C. Wu Building together. D1 went up to a table where a shoulder bag was placed on a chair. He took it and covered it with his own bag. Whilst he was doing so, D2 to D4 stood on his two sides. After taking the shoulder bag, D1 left. D2 to D4 followed him closely. D2 took off his shirt and hat and put them into his rucksack. After walking for a while, he let D1 put the shoulder bag stolen into his rucksack. When D1 and D2 reached Wan Chai Park, D2 took out the shoulder bag from his rucksack, looked into the shoulder bag with D1. They slapped at each other’s hand. D3 and D4 entered the park shortly afterwards. D2 took out the shoulder bag again to show its contents to D3 and D4. The police intercepted D1 to D4 at this juncture. 3.The owner of the bag, Wu, was located by the police. He was in Delifrance with his friend, Tao. According to Wu and Tao, Wu had gone to the cashier counter to buy food whilst Tao was to look after their belongings including the shoulder bag. A South American male had gone up to Tao to point at Tao’s trousers, which were stained. Tao had bent down and cleaned his trousers. When Wu returned to their seats, he found his shoulder bag missing. 4.The shoulder bag (valued at $9,800, HK$, unless otherwise stated) contained:
5.CCTV recording at CC WU Building captured the images of D1 to D4 inside the building and appearing near Delifrance at the material time. Facts of 2nd charge (against D1) 6.Police investigation of the Delifrance theft recovered a bag which contained a laptop computer, an adaptor and a USB cable stolen from LIN Chi-fai by D1 at around 10:10 a.m. on the same date in Tsim Sha Tsui Ferry Pier, Tsim Sha Tsui. 7.According to LIN, he was a telecom technician. He brought along his tools, including a bag which contained a laptop computer, an adaptor and a USB cable to the security room of the Tsim Sha Tsui Ferry Pier, Tsim Sha Tsui to take up an assignment of work. When he was processing his registration at the security room, he left his belongings, including the bag, outside the room without paying attention to them. After going out of the room, he discovered that he lost the bag with the said contents. A report was made to the police. 8.The police subsequently showed him the bag and its said contents. The laptop computer was valued at $4,800. Facts of 1st Charge (against D2) 9.Police investigation of the Delifrance theft revealed a theft of a computer bag belonging to CHAN Himan which happened at 10:30 a.m. on 22 October 2009 at McDonald’s on 1st Floor, No. 8 Russell Street, Causeway Bay. 10.According to CHAN, she was at McDonald’s with her friend. She placed a silver-white computer bag containing a laptop computer and a USB device (valued at $15,900 in total) on the sofa without paying much attention to them. When she was about to leave at around 11:10 a.m., she found the computer bag and its said contents missing. A report was made to the police. The lost properties could not be recovered. 11.CCTV recording captured the images of 3 suspects loitering around the table of CHAN at the material time. A suspect, later revealed to be D2, took something in silver-white near CHAN, covered it up with a rucksack and fled. The other two suspects followed suit. Police interviews with D1 12.D1 said:
Police interviews with D2 13.He said:
14.He said:
15.He said:
Mitigation put forward 16.They all have a clear record in Hong Kong. They were all born in Peru and came from its capital city, Lima. D3 and D4 claim to know each other but not D1 or D2 before coming to Hong Kong. D1 and D2 did not know each other or D3 and D4 before coming to Hong Kong. 17.They are each married and have children. They claim to have come for business purpose but succumbed to stealing without prior planning. Only D1 and D3 can prove their business or purchase of merchandise in Hong Kong. D2 and D4 can offer nothing as proof. 18.The police have seized from D2 cash US$1,155 and (HK)$3,366.70. D2 is agreeable to applying such sums in compensation of the victim, CHAN Himan, in the 1st Charge. Sentencing discussions 19.Solicitors for D1 to D4 accept that the present facts can be treated on a par with pickpocketing. 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. 20.Joint enterprise featured in the 1st Charge (McDonald’s) and the 3rd Charge (Delifrance). Where there were aggravating factors such as joint enterprise, a heavier sentence would be imposed (per Ma CJHC in Ngo Van Huy, at 7). 21.In The Queen v Nguyen Phan Linh CACC454/1989, on an evening the applicant and another man were seen in Cameron Road, Tsim Sha Tsui. The other man bumped against a Chinese woman, keeping close to her and thereby affording the applicant the opportunity of opening her handbag and removing a purse. The woman screamed. The applicant threw the purse to the ground and, with his accomplice, made off. Kempster JA stated, at para. 8, that:
22.In HKSAR v Liao Mei CACC 432/2004, the three applicants operated as a pickpocketing gang. They crowded around a young woman at Sham Shui Po MTR station. When the train arrived they boarded the train with her. On the train they stood close to her and one of them removed a mobile phone from her rear jeans pocket and immediately passed it to another. The Court of Appeal agreed with the sentencing judge’s starting point of 2 ½ years. Present sentence 23.Each defendant played an important though different role in a well-organised team at Delifrance. Their culpability was the same. They employed some tactics to camouflage and escape from the scene as well as to hide the loots. In line with the authorities, I take 2 ½ years as the starting point. I reduce it to 20 months due to their plea of guilty. This is the sentence for each defendant in the 3rd Charge. 24.D1 committed the theft at Tsim Sha Tsui Ferry Pier single-handedly. I take 12 months as the starting point. I reduce it to 8 months due to his plea of guilty. This is his sentence in the 2nd Charge. 25.D2 committed the theft at McDonald’s with 2 other people. There is no detail given by the prosecution as to any planning or tactics except that they were loitering around the victim’s position before stealing. I take a starting point of 24 months. I reduce it to 16 months due to his plea of guilty. He does not resist a compensation order of the rather substantial sums of cash seized from him. I give him 1 month’s extra discount. His sentence is 15 months in the 1st Charge. 26.The 3 charges related to separate transactions and attract consecutive sentences. Finally, by totality, I make the following order:
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