HKSAR v. Padilla Gerardo Gonzaga and Others

CACC275/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 275 OF 2011

(ON APPEAL FROM DCCC NO. 155 OF 2011)

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BETWEEN

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Before: Stock VP, Yeung VP and Cheung JA in Court

Date of Hearing: 30 November 2011

Date of Judgment: 30 November 2011

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.We are concerned in this case with five applicants from the Philippines who are said to have come to Hong Kong on 23 November 2010 and two days later stolen a diamond at the Hong Kong Exhibition Centre.

2.There were other charges levelled at the fourth and fifth applicants, but with these we are not concerned.  We are concerned with the first charge which was a charge of theft.

3.The first, third and fourth applicants pleaded guilty to theft and each was sentenced on 4 July 2011by Deputy Judge A Yuen in the District Court to a term of three years’ imprisonment for that offence.  They seek leave to appeal against that sentence.

4.The second applicant pleaded not guilty but was convicted and sentenced to 4½ years’ imprisonment for that theft.  He seeks leave to appeal against the conviction and sentence.  He is represented as to sentence but not as to conviction and we have heard him in relation of conviction today.  He has provided an account of events which has warranted an adjournment of his application.

5.The fifth applicant pleaded guilty to theft, sought leave to appeal against the sentence of three years’ imprisonment imposed upon him but subsequently abandoned that application.  He now asks the court to treat that application as a nullity and to determine his original application for leave to appeal against sentence.  He is unrepresented and has today provided an explanation for the abandonment which we wish to consider in the context of the standard form notice of abandonment.  Our decision as to that application is reserved.

The facts

6.On 23 November 2010 the applicants checked in at about the same time at Manila Airport and then into the same hotel in Hong Kong.  The flight to Hong Kong was booked by all the applicants on their behalf through the same agent save in the case of the second applicant.  On 25 November 2010 their return flights were each changed by advancing their return journey from 27 November to 26 November.

7.There was an international jewellery show at the Hong Kong Conventional and Exhibition Centre in Harbour Road Wanchai between 25 November 2010 to 28 November 2010.  At about noon on 25 November 2010 at an exhibition booth operated by Reveur Company inside the Exhibition Centre, the first applicant was seen by CCTV footage to steal from a show case a diamond, belonging to Reveur, which was worth HK$251,682.

8.The footage shows all the applicants lining up together to wait for registration and that when the first applicant stole a diamond, the third and fourth applicants were acting as distracters by making enquiries with the sales assistants at the booth.  It is said that the second applicant was in the same booth opposite the first applicant.  The fifth applicant admitted that he was part of the group that had gone to steal the diamond.

9.On the morning of 26 November 2010, the first to fourth applicants were intercepted at the airport when they attempted to leave Hong Kong and the fifth applicant was intercepted at the Macau Ferry Terminal on 7 December 2010.

10.The stolen diamond has not been recovered.

The sentences

11.In relation to the sentence for the offence of theft, the judge took a starting point of three years’ imprisonment.  In the case of the applicants who pleaded guilty he reduced that by one-third to 2 years’ imprisonment.  He noted that this was “a serious case of theft involving international element and was well-planned.  I am satisfied that it falls within the meaning of the organised crime pursuant to section 2 of the Organized and Serious Crimes Ordinance.”  To reflect that finding, he enhanced each sentence by 50%.  This meant that in all cases, save that of the second applicant who had pleaded not guilty, the resulting sentence was three years’ imprisonment; whereas in the case of the second applicant, the resulting sentence was 4½ years’ imprisonment – that is to say, three years as the starting point, plus the enhancement of 50%.

The starting point

12.The first point taken by Mr Tze on behalf of the applicants is that the starting point of three years is manifestly excessive.  We do not agree.  This was the theft of a diamond valued at $251,682; and we think a starting point of three years was unobjectionable.

The OSCO enhancement

13.It is then argued that the enhancement of 50% under section 27 of the Ordinance was itself excessive.  We do not need to decide that point because there is another point, not taken either in the court below or on appeal by the respondent or for the applicants.  The point is that this cannot appropriately have been described as an organised crime as defined by s. 2 of the Ordinance.

14.Only the second category embraced by the definition was relied upon by the prosecution, namely, a Schedule 1 offence (theft is such an offence) that “is related to the activities of two or more persons associated together solely or partly for the purpose of committing two or more acts, each of which is a Schedule 1 offence and involves substantial planning and organisation.” (Emphasis added)

15.It is impossible to discern from the evidence more than one act which is a schedule 1 offence to commit which these applicants joined together.

16.The Court notified the parties of the issue before this hearing, asking for the point to be addressed and asked as well for a copy of the notices of the prosecution’s intention before sentence to seek a determination that the offence was an organised crime.

17.In response to our request, counsel for the respondent seeks to uphold the finding of an organised crime on the suggested basis that the offence of theft was related to the activities of two or more persons associated together for the purpose of committing two acts each of which was a scheduled offence.  The other act relied upon in the respondent’s written response for this purpose was “the act of entering the Convention and Exhibition Centre by the applicants for the purpose of stealing jewellery inside it.  So that the applicants should be treated as trespassers and that the act amounts to burglary which is also a Schedule 1 offence.  The second act is the act of stealing the diamond inside the Exhibition Centre.”

18.This in an untenable proposition as Mr Lee is today minded to concede.  It should be obvious that such a construction of s. 27 is to stretch the interpretation of the statutory provision beyond anything that could conceivably have been intended. It would, if correct, mean that every theft by two persons that took place inside a building could be rendered an organised crime simply because from the facts an offence of burglary, in relation to precisely the same conduct, could be culled.  Mr Lee was minded today to put forward other acts but we were not prepared to hear him on that because no other act was relied on either in the section 27 notices or in the court below.

19.Indeed, the section 27 notices themselves did not support the proposition of two or more acts and as framed cried out for the point to be spotted.  Each notice said that:

“The prosecution intends to request this Court to make a determination that the offence was an organised crime in that it is related to activities of two or more persons associated together solely for the purpose of committing two or more acts, namely Theft, which is a Schedule 1 offence and involves substantial planning and organisation.” (emphasis added)

20.It is difficult to understand:

(1)   how the draftsperson of that notice did not appreciate the effect of what she was saying, which was that there was but one act relied upon, a single offence of theft and not two acts, let alone two or more.

(2)   how counsel on fiat for the prosecution in the court below failed to notice the point.  We note from the transcript of the submissions that there was no suggestion that that the conduct in question involved more than one act each of which constituted a scheduled offence;

(3)   how no fewer than two defence counsel and one defence solicitor failed to address the point in the court below;

(4)   that neither counsel upon this appeal considered the point before it was drawn to their attention by this Court; and

(5)   why counsel for the respondent upon this application has sought to support the enhancement on this application.

21.The long and short of the matter is that the court below was not empowered to enhance the sentence pursuant to the provisions of the Organized and Serious Crimes Ordinance.

The correct sentences

22.The court was however entitled – indeed, duty bound – to give effect to features in aggravation of the offence of theft, though without recourse to the Organized and Serious Crimes Ordinance.  The aggravating features were the international element and the facts that the offence was planned and committed by several persons.

23.In our judgment, those aggravating features in the context of a public exhibition of expensive jewellery, warranted in each case a sentence, prior to discount for mitigating features, of four years’ imprisonment.

Result

24.Accordingly, we allow the applications of the first, third and fourth applicants inclusive to appeal against sentence, treat the hearing of their applications as the appeals, set aside the sentences on the first charge and substitute therefore, in their cases, a term of two years and eight months’ imprisonment on this charge.

25.In the case of the fourth applicant, she pleaded guilty as well to one charge of breach of a deportation order and to a charge of making a false representation to an immigration officer.  The judge took a starting point of 12 months’ imprisonment in relation to each, reduced that to 8 months’ imprisonment for each in the light of the pleas of guilty, and ordered the sentences to run concurrently to each other but consecutive to the sentence on the first charge, making a total sentence of three years and eight months’ imprisonment.  In the case of the fourth applicant, we make the order, that those sentences of eight months each, concurrent to each other, shall run consecutively to the sentence of two years and eight months for the offences of theft, making a total sentence of three years four months’ imprisonment in her case.

Mr Robert K Y Lee, SADPP of the Department of Justice, for the Respondent

Mr James Tze, instructed by Director of Legal Aid, for D1-D4/1^st – 4^th Applicants (re: sentence only)

D2/2^nd Applicant – acting in person (re: conviction)

D5/5^th Applicant – acting in person