HKSAR v. De Oliveira Eleandro

DCCC539/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 539 OF 2011

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Reasons for Sentence

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1.The defendant has pleaded guilty to a charge of robbery.

2.The offence was committed on 7 April 2011 inside the Rosary Church, No. 125 Chatham Road South, Tsim Sha Tsui, Hong Kong.  The victim in the case was a Chinese lady aged 29 and from her was stolen her handbag containing a purse. 

3.The facts are that at about 9.10 on the evening of 7 April 2011, Miss Ku, the victim, was at the garden of Rosary Church in Chatham Road South.  She was using her mobile phone and next to her was her handbag that was placed on the floor beside her.

4.The defendant went into the garden and approached the victim.  She did not know the defendant, so paid no attention to him and continued to use her mobile phone.  Suddenly the defendant tried to grab the lady’s mobile phone but failed.  He then took out a can of body deodorant and sprayed in the direction of the victim’s face. 

5.At this juncture the defendant snatched the victim’s handbag and ran off in the direction of Austin Lane.  The victim immediately chased after the defendant and saw him throw away the handbag.  The victim picked it up and found that her wallet was missing.

6.She continued to chase after the defendant and shouted for assistance.  Police officers were in the vicinity and saw the defendant being chased by the victim.  One of the officers immediately subdued and arrested the defendant.    

7.All the property stolen from the victim was recovered. 

8.A video recorded interview was conducted and the defendant denied the offence.  He claimed that he had no idea of the incident as he had taken some drugs which had been given to him by a stranger at a convenience store shortly before the incident occurred.  He claimed that he had no recollection of the incident afterwards until he was at the police station.

9.The defendant has a clear record, he is a Brazilian national and has a clear record both in Brazil and in Hong Kong.  I am told that he comes from an impoverished family from a poor part of Brazil, but through perseverance managed to achieve tertiary education, obtaining a diploma in business and international trade. 

10.I am told that he worked for 6½ years for two logistical companies and was given significant responsibility whilst working for those companies, including the supervision of the accounts of some of the major clients.  After working for the logistical companies he then joined his father who had a small business, and he joined that principally to help out with the family finances.

11.I am told that thereafter the defendant came to Guangzhou to set up a business there, dealing in leather goods and electronic goods.  He arrived in January with his fiancée and took a one year lease on a flat in Guangzhou.  I am told that the reason for his visit to Hong Kong was to renew his China visa.  I am told that when he arrived in April for that purpose it was the Ching Ming Festival and so he had to wait a number of days in order to get his visa.      

12.Whilst he was in Hong Kong he could only afford to stay in very cheap accommodation.  The accommodation was not secure so he was obliged to keep with him his luggage.  On the day in question he had had with him two pieces of luggage, one for his clothes and a second for his toiletries, which was in a waist bag. 

13.I am told that on the material day he himself had been the victim of a theft when the larger piece of luggage he had with him was stolen from him whilst he was sat on a bench.  I am told that he rang his fiancée and spent the rest of the day killing time.  I am told that he visited a 7-Eleven shop and purchased some beer from there. 

14.He was also approached by a Portugese speaking gentleman from Angola who offered him two pills, which he foolishly agreed to purchase.  I am told that he paid $200 for those pills.  I am told that the next thing which the defendant recalls is waking up in a police cell.

15.These factors are urged upon the court not as a defence but to explain the circumstances in which the offence came to be committed.  Fortunately, there was no injury to the victim as a result of the robbery and all the property has been recovered. 

16.A number of letters of mitigation have been placed before the court for my consideration.  I have a letter from the defendant himself and much of what he said in the letter was repeated from the dock by the defendant in a plea for leniency.

17.I have a very moving letter from the defendant’s mother who refers to him as an honest and hardworking son.  I have a letter from his pastor in Brazil who also refers to the defendant as a hardworking person.  I am told that he is regarded by the pastor as a good and dedicated hardworking person, a dedicated member of the church who helps out with the maintenance of musical instruments and visiting the sick and needy.

18.I also have before the court a letter from the Deputy Consulate General of Brazil who has attended court today together with members of his staff.  It is apparent from that letter that the Consulate have taken a genuine interest in this case and have done much to research the defendant’s background.  Everything that I have been told in mitigation by the counsel has been confirmed by the letter from the Consulate General.

19.The Consulate General has also pointed out the isolation which the defendant will suffer whilst he is in prison in Hong Kong.  Although the defendant came with his fiancée, she has been obliged to return to Brazil and the business he had set up in Guangzhou has folded.

20.There are few Portugese speakers in Hong Kong prisons.  The defendant speaks no Cantonese and very little English.  There is also no prisoner exchange program between the two countries. 

21.Robbery is always a serious offence.  The victim in this case, a 29-year-old lady, was minding her own business when she was subjected to this ordeal.  The courts are required to impose sentences which not only reflect the gravity of the offence but also a sentence which deters others from committing similar offences.

22.The main matters urged upon me in mitigation in this case are that this offence was completely out of character and it was committed in somewhat unusual circumstances.  I was told that it was an unusual combination of random circumstances which led the defendant to commit the offence.  No injury was caused to the victim.  All the property has been recovered. 

23.I have had placed before me a number of mitigating letters, including one from the Consulate General and they have offered strong support to the defendant in this case.  

24.I accept the defendant will be very isolated in prison in Hong Kong because of his linguistic problems and also the fact that there will be no chance of any of his family or friends visiting him whilst he is in prison. 

25.The Court of Appeal has said that this is a factor which the courts can take into account but not to any substantial degree. 

26.The main mitigating feature is the fact that the defendant has pleaded guilty to the offence. 

27.I take as a starting point for this offence a sentence of 3 years and 3 months’ imprisonment - 39 months.  I reduce that by one-third to reflect the guilty plea entered by the defendant, so it will be reduced to 2 years and 2 months, a period of 26 months in total.