HKSAR v. Wabhi Tri-wahyu

DCCC 728/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 728 OF 2014

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Reasons for Sentence

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1.The defendant pleaded guilty to two counts of immigration-related offences and one count of theft. He was convicted accordingly.

Brief Facts

Charge 2

2.On 8 July 2014 at 3:30 pm, the victim surnamed Wu (PW1) withdrew cash in the sum of $300,000 from his bank account at a Hang Seng Bank branch in Sheung Shui.  PW1 put his money into three envelopes in equal sum and kept the same in his rucksack.  When PW1 was walking through a subway at Po Shek Wu Road, he felt the defendant inserting his right hand into his rucksack. Defendant immediately withdrew his hand and stepped back.  PW1 shouted loudly at the defendant that he was stealing his money.  At this juncture, two police officers were patrolling in the vicinity.  They gave chase after the defendant.  When the defendant arrived at the staircase near Po Shek Wu Road, the defendant bumped into another male.  That male ran upstairs towards Po Shek Wu Road while the defendant ran towards San Wan Road.  Eventually, the police officer intercepted the defendant.  The defendant kept silent after being cautioned.

3.PW1 found that one of the envelopes containing $100,000 was missing.

Charge 3

4.Police investigation revealed that the defendant first came to Hong Kong on 19 February 2007 with an Indonesian passport numbered P113247 in the name of Supri Yatnak with the date of birth of 13 May 1984.

5.The defendant was deported back to Jakarta on 27 February 2012 under a deportation order dated 23 February 2012.  The deportation order required the defendant to leave Hong Kong and prohibited the defendant from being in Hong Kong thereafter.

6.On 30 June 2014, the defendant came to Hong Kong on the strength of an Indonesian passport numbered A724962 in the name of Wabhi Tri Wahyu with the date of birth of 27 July 1986.

Charge 1

7.In the cautioned interview, the defendant confessed that he was deported from Hong Kong previously.  Hence, the defendant used another identity to apply for a passport.  He used the name of Wabhi Tri Wahyu with the date of birth of 27 July 1986 and obtained a new passport numbered A724962.  The defendant claimed that his real name is Supri Yatnak with the date of birth of 13 May 1984 as stated in his previous passport.  The defendant insisted that his new passport was issued by the Indonesian government.

Mitigation

8.The defendant is aged 28 and has a young son aged 5.  He was unemployed in Indonesia and came to Hong Kong with a view of getting a job.  When asked, defence lawyer said he has no instruction as to how the defendant financed his trip to Hong Kong.  It was submitted that there were three aggravating features in this case: (1) the defendant had a similar conviction; (2) the sum of the cash stolen was a large sum and could not be recovered; and (3) the defendant committed the offence while under a deportation order. 

9.Defence lawyer urged the court to pass a concurrent sentence on the immigration-related offences as the culpability of the offences was relatively the same.  Without the defendant’s admission, there would be no evidence against him on Charge 1.  The defendant wrote a mitigation letter saying that he committed the offence because of his friend. Defendant said he, Wabhi Tri Wahyu, was truly sorry about what he did and apologised to the victim.

Sentence

10.The defendant is of 28 years old and married. He was unemployed in Indonesia.  The defendant had three convictions, and one of them was attempted theft back in 2009.  Upon inquiry, it was revealed that the theft offence was one of pickpocketing for which the defendant received a sentence of 2 years.  The defendant was discharged from prison in February 2012 and was deported back to Indonesia thereafter.  There is no application for enhancement of sentence under section 27 of the Organised and Serious Crimes Ordinance by the prosecution. 

11.However, there were a number of aggravating features in this theft offence.  The defendant came to Hong Kong on 30 June 2014 with a different name, Wabhi Tri Wahyu, even though the defendant confessed that it was a false name with a different birth date. There is no clear evidence as to which version put forward by the defendant is real, that is, whether the defendant’s real name is Wabhi or Supri.  In his mitigation letter, the defendant named himself as Wabhi.  The defendant committed the present offence some eight days upon arrival in Hong Kong. If the defendant was unemployed, how could he finance his flight to and stay in Hong Kong?  It would not be cheap for him.  How could he have the money to get a new passport with a different identity from his previous one, which is subject of the deportation order?  The defendant was deported in February 2012 and returned to Hong Kong in June 2014 with a different passport.  I could not speculate whether this defendant had used other means to come to Hong Kong.  That also demonstrates how easy it was to circumvent the deportation order as the deportee could easily get another passport, even if it was a legal one, through different channel.  

12.Had the prosecution had evidence of using a false passport, heavier sentence is called for.  It is a pity that the Indonesian government up to now has not responded to the inquiry made by the police as to the authenticity of the passport used by the defendant on this occasion.

13.In my view, the defendant came to Hong Kong, not for a vacation, but with a clear intention to breach the deportation order and to commit crimes.  He used a different identity to circumvent the deportation order.  The defendant and his accomplice targeted the victim when the latter took cash from the bank.  Eventually, the victim lost $100,000 in cash.  The defendant passed the stolen property to his accomplice and hence the money could not be recovered.

14.The defendant was not the first offender of this theft charge.  I considered the authorities of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 and HKSAR v Wong Kang Sun [2014] 1 HKLRD 622.  Taking into account of those aggravating features, I used 27 months as a starting point.  Given the defendant’s plea, I reduce the sentence for Charge 2 to 18 months’ imprisonment.

15.As regards the immigration-related offences, for Charge 1, I accept that the prosecution has to rely on the defendant’s admission as the Indonesian government does not offer any real assistance in this matter.  I would use the starting point of 18 months. And with his plea, I reduce the sentence for Charge 1 to 12 months.  For Charge 3, the breach of deportation order, the defendant used a passport of different identity with clear intention to commit a breach.  He came to Hong Kong either to find a job, as said in the mitigation, or to commit a crime, as evidenced in the present offence.  I adopt a starting point of 27 months.  I reduce the sentence to 18 months because of his plea.  I am also lenient to the defendant and order that the sentence of these two immigration offences to be run concurrently. 

16.However, the theft offence carries a different nature of criminality and the defendant was not acting alone.  I consider the totality principle and order that the sentence should run consecutively. Accordingly, I sentence the defendant to a total term of 36 months’ imprisonment.