HKSAR v. Aguilar Garcia Milner Javier and Another

DCCC 863/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 863 OF 2012

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REASONS FOR SENTENCE

1.The defendants plead guilty to five joint charges of theft, contrary to section 9 of the Theft Ordinance, Chapter 210.

2.Briefly the defendants are visitors from Peru.  D1 arrived in Hong Kong on the 25th June and D2 on the 2nd July 2012.  The offences took place between the 4th and the 12th July and concern the theft of bags left unattended whilst the owners were eating or drinking in various restaurants or cafes, mostly located in Tsim Sha Tsui.

Charge 5

3.Around 20:50 hours on the 12th July the police saw the defendants acting furtively at Nathan Road near Carnarvon Road in Tsim Sha Tsui.  D2 was seen to pass a brown handbag to D1 and then enter Mirador Mansion where they were intercepted.  The defendants, in English, admitted they had together stolen the brown handbag.

4.Enquiries revealed that at around 20:00 hours on the same day Mr Tsang, while having dinner at a restaurant in the Gateway Arcade in Harbour City, placed the brown handbag under his chair.  At around 22:30 hours Mr Tsang discovered his handbag was missing.  A report was made to the police and Mr Tsang subsequently identified the brown handbag together with the contents as particularised in charge 5, which had been seized from D1 on arrest.

Charges 1-4

5.Further enquiries revealed four more thefts earlier in the month where bags had been stolen after being left on the ground by their owners.  Briefly on the 4th July Mr Kim placed his black Samonsite rucksack on the ground whilst in the Star House branch of Starbucks.  About 30 minutes later Mr Kim discovered his rucksack was missing and made a report to the police.  CCTV footage captured both D1 and D2 leaving Starbucks with D1 carrying Mr Kim’s rucksack.  The rucksack was later seized from the guest house where D1 was staying but the contents including passport and identity card were not recovered.  D1 later admitted he had thrown the contents of the rucksack away (charge 1).

6.On the 5th July Mr Parnham put his rucksack on the floor whilst at the burger counter of Three Sixty in the Elements shopping centre.  About 15 minutes later Mr Parnham discovered his rucksack was missing and made a report to the police.  CCTV footage again captured both D1 and D2 leaving Three Sixty with D1 carrying Mr Parnham’s rucksack.  Some of the contents of the rucksack were recovered when they were handed into the police having been found by members of the public.  Inside the rucksack was also an iPad and speaker, both of which have not been recovered (charge 2).

7.On the 7th July Mr Yoshikawa placed his handbag at the back of his chair whilst having dinner in the Quanjude Roast Duck restaurant in the South Seas Centre.  About 45 minutes later Mr Yoshikawa discovered his handbag was missing and made a report to the police.  CCTV footage captured D2 taking away the bag and leaving the restaurant together with D1.  The bag and contents, including Mr Yoshikawa’s passport, a digital camera and some cash have not been recovered (charge 3).

8.On the 12th July at about 19:00 hours Mr Cheung put his Agnes b bag under his chair whilst having dinner with his wife in the Tim Ho Wan restaurant in the Hong Kong Station.  About 50 minutes later Mr Cheung discovered his bag was missing and made a report to the police.  Some of the contents of the bag were later seized from D1 on arrest.  However, other items, including identity card, travel documents, bank cards and some cash, were not recovered (charge 4).

9.Both defendants, with the assistance of a Spanish interpreter, were subsequently interviewed on video about each of the thefts.  Both defendants admitted their involvement in the theft of the bags. 

10.In passing sentence I have carefully considered everything said on behalf of the defendants by Miss Lee, including that they stole because they were in need of money.  I also take into account that both defendants have no previous convictions in Hong Kong.  This, however, carries little weight the defendants having only been in Hong Kong for a few days before they started to steal.

11.Unlike pickpocketing there are no guidelines for this type of theft although they have been said to be similar in nature to the offence of pickpocketing (see for example HKSAR v Cortes Ramon Miguel HCMA 858/ 2011 and HKSAR v Tan Guixiang HCMA 1012/2006).   

12.Sentences of between 9-18 months imprisonment after trial have been said to be appropriate for theft in circumstances similar to the present offences (also see HKSAR v Morales Alva, Adilio Victoriano HCMA 178/2007; HKSAR v Zhou Dingshu HCMA 96/2004 and HKSAR v Rang Zhi-tai & another HCMA 7/1999). 

13.Whilst each offence taken individually may be classified as an opportune theft, this was a series of thefts committed over a period of 9 days, showing a degree of premeditation on the part of the defendants.  The defendants were clearly on the lookout for bags left unattended by their owners.  Charges 4 and 5 were committed just over an hour apart on different sides of the harbour. 

14.In R v Saldana Alca Jose & another CACC 655/1998, a pickpocketing case, the Court of Appeal said: “…because of their seriousness, organised crimes of this nature including group pickpocketing, even without international ramifications, might in future properly attract a starting point of at least 2½ years’ imprisonment.”  The Court of Appeal’s comments must however be viewed in the context of a case which was steeped in an aura of sophisiticated organized gang crime with a very substantial amount stolen from an elderly man and which at the core of the case was an international element (see HKSAR v Chan Mei-yee, Carman CACC 447/2009 at paragraph 24).

15.Although one might be suspicious the defendants came to Hong Kong solely to commit crime, in particular by the number of offences committed in a short period of time, I find considering the defendants did not come together and that the first theft took place after D1 had been in Hong Kong for 10 days, I cannot be satisfied they came to Hong Kong to steal.  Further, although D2 at first tried to hide this fact from the court, he has been to Hong Kong on 12 occasions without offending before.

16.Albeit in a far more serious case the Court of Appeal said in HKSAR v Obiagwu Oluchukwu Christian CACC 307/2009 that the commission of robbery by visitors to Hong Kong can be regarded as an aggravating feature.  I am satisfied this equally applies to the facts of the present case.  There is a need to deter tourists who, having come to Hong Kong with insufficient funds or soon after run out of money, think that they can then steal.

17.I am further satisfied no distinction should be drawn between the defendants. Clearly the only inference to draw is that while one was taking the bag the other was acting as the lookout.  

18.Taking into account the defendants were tourists who acted together and preyed on victims who were in busy restaurants or shopping centres, I am satisfied the proper starting point after trial on each charge is one of 18 months imprisonment. 

19.Giving the defendants full credit for their pleas of guilty reduces the sentences to 12 months imprisonment on each charge.  Although the offences form a series of acts over a relatively short period of time they are nevertheless separate and distinct thefts involving different victims.  I am satisfied a total sentence of 3 years imprisonment properly reflects the criminality of the defendants on the five charges.

20.The defendants are convicted and sentenced as follows:

Charge 1 – 12 months imprisonment;

Charge 2 – 12 months imprisonment;

6 months consecutive and 6 months concurrent to charge 1;

Charge 3 – 12 months imprisonment;

6 months consecutive and 6 months concurrent to charges 1 & 2;

Charge 4 – 12 months imprisonment;

6 months consecutive and 6 months concurrent to charges 1, 2 & 3;

Charge 5 – 12 months imprisonment;

6 months consecutive and 6 months concurrent to charges 1, 2, 3 & 4.

Please refer to CACC485/2012 for the relevant appeal(s) to the Court of Appeal.