DCCC54/2011 HKSAR v. NGUYEN THE CUONG AND OTHERS - LawHero
DCCC54/2011
HKSAR v. NGUYEN THE CUONG AND OTHERS
區域法院（刑事）H H Judge Tallentire18/9/2011
DCCC54/2011
A A
DCCC54/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 54 OF 2011
C C
----------------------
D D
HKSAR
E v. E
Nguyen The Cuong (D1)
F F
Tran Thi Thuy Nga (D2)
Nguyen Anh Cuong (D3)
G Bui Thi Phu (D4) G
----------------------
H H
Before: H H Judge Tallentire
I
Date: 19 September 2011 at 2.32 pm I
Present: Ms Catherine Fung, Counsel on fiat, for HKSAR
Mr Cheng Kee-tin Sky, instructed by May Cheng & Co.,
J assigned by the Director of Legal Aid, for the 1st and J
2nd Defendants
Mr Yuen Kwok-wah Bernard, instructed by Lily Fenn &
K Partners, assigned by the Director of Legal Aid, for K
the 3rd Defendant
L Mr So Kai-ming Selwyn, instructed by Messrs Tse Yuen L
Ting Wong, assigned by the Director of Legal Aid, for
the 4th defendant
M M
Offence: (1)-(5) Conspiracy to steal (串謀盜竊罪)
(6) Dealing with property known or believed to
N N
represent proceeds of an indictable offence (處理已知道
或相信為代表從可公訴罪行的得益的財產)
O (7) Possession of a forged identity card (管有偽造身分 O
證)
P (8) & (10) Remaining in Hong Kong without the authority P
of the Director of Immigration after having landed
unlawfully in Hong Kong (在香港非法入境後未得入境事務處處長授
Q Q
權而留在香港)
(9) & (11) Breach of deportation order (違反遞解離境令)
R R
---------------------
S Reasons for Sentence S
T --------------------- T
U U
CRT31/19.9.2011/ML 1 DCCC54/2011/Sentence
V V
A 1. I make a general comment. You will appreciate that A
this has been somewhat complicated in view of the number of
B charges and the way in which the matter has evolved. B
C C
2. D1, you originally pleaded not guilty to two charges
of conspiracy to steal, each contrary to section 9 of the Theft
D D
Ordinance and sections 159A and C of the Crimes Ordinance,
E Cap.200, and you also denied one offence of dealing with E
property known or believed to represent the proceeds of an
F indictable offence, contrary to sections 25(1) and (3) of the F
Organised and Serious Crimes Ordinance, Cap.455.
G G
3. D2, you pleaded not guilty to five charges of
H H
conspiracy to steal and not guilty also to one offence of
I
dealing with property known or believed to represent proceeds of I
an indictable offence. Additionally, you denied one offence of
J possession of a forged ID card, contrary to section 7A(1) of the J
Registration of Persons Ordinance, Cap.177.
K K
4. D3, you pleaded not guilty to five offences of
L L
conspiracy to steal and guilty to one offence of remaining in
Hong Kong, contrary to section 38(1)(b) of the Immigration
M M
Ordinance, Cap.115, and guilty also to breach of a deportation
N order, contrary to section 43(1)(a) of the Immigration N
Ordinance, Cap.115.
O O
5. D4, you pleaded guilty to five offences of conspiracy
P P
to steal and guilty to one offence of remaining in Hong Kong
without the authority of the Director of Immigration, contrary
Q Q
to section 38(1)(b) of the Immigration Ordinance, Cap.155, and
R guilty to one offence of breach of a deportation order, contrary R
to section 43(1)(a) of the Immigration Ordinance, Cap.115.
S S
6. You admitted the brief facts and I convicted you.
T T
U U
CRT31/19.9.2011/ML 2 DCCC54/2011/Sentence
V V
A 7. D3, you had the facts regarding Charges 8 and 9 put to A
you and you were convicted on their admission.
B B
8. At the close of the prosecution case, Mr Cheng, on
C C
behalf of you, D1, on Charges 1, 2 and 6, and on behalf of you,
D2, in respect of Charges 1 to 7, made submissions of no case to
D D
answer.
E E
9. Mr Yuen, on behalf of D3, made similar submissions on
F Charges 1 to 5. F
G G
10. For reasons delivered and recorded in the court
record, I found there was a case to answer in respect of each
H H
and every one of those charges.
I I
11. Thereafter, D3 applied to change his plea to one of
J guilty in respect of Charges 1 to 5, initially on the basis that J
he had conspired with D4; and D1 on Charges 1, 2 and 6; and D2
K on Charges 1 to 6 made similar applications. K
L L
12. D2 maintained her plea of not guilty in respect of
Charge 7. This was acceptable to the prosecution.
M M
N 13. I allowed the change of pleas and convicted each of N
the defendants on the prosecution case which had now closed.
O O
14. Charge 7 was left on file, not be to be proceeded with
P P
without leave of this court or the Court of Appeal.
Q Q
15. Briefly, the facts are as follows.
R R
16. There are seven H & M stores in Hong Kong selling
S clothes of the H & M and Divided brand. The garments are S
protected by anti-theft security devices which are removed on
T T
payment. If not removed, the alarm would be activated. However,
U U
CRT31/19.9.2011/ML 3 DCCC54/2011/Sentence
V V
A if they are placed in a container wrapped in tin foil, the alarm A
would not be activated.
B B
Charge 1
C C
17. D1 and D2 resided at Flat D, 6th floor of Golden Hall
D D
Building, Castle Peak Road, Yuen Long.
E E
18. At about 1745 hours on 2 November 2010, police saw
F D1 to 4 leaving the building. D3 was carrying a black bag and F
D4 a suitcase, both of which had been lined with tin foil.
G G
19. They went to the H & M store at Queen’s Road Central,
H H
entering there at about 1825 hours. They returned to the flat at
I
about 1955 hours. I
J 20. CCTV had captured D2 to D4 inside the shop. J
K Charge 2 K
L L
21. At about 1800 hours on 3 November last, police saw
D1 to D4 leave the Golden Hall Building. D3 and D4 carried the
M M
same altered bags.
N N
22. At about 1845 hours, they entered the H & M store at
O Elements. D1 left shortly thereafter; D2 to D4 at about O
1915 hours.
P P
Charge 3
Q Q
R 23. At about 1950 hours that same day, D2 to D4 entered R
the H & M store at Canton Road, Tsim Sha Tsui. D3 and D4 still
S carried the same bags. At about 2015 hours they left and S
returned to the building.
T T
24. CCTV had captured D3 inside the shop.
U U
CRT31/19.9.2011/ML 4 DCCC54/2011/Sentence
V V
A A
Charge 4
B B
25. At about 1810 hours on 8 November last, police saw D1,
C C
D2 and D4 leave the building and head for Yuen Long West Railway
Station. D4 carried a black suitcase. D3, carrying the same bag
D D
as on previous occasions, joined them on the train.
E E
26. They went to Festival Walk. D1 met a man and got the
F suitcase D4 was carrying. He opened it and took out the other F
suitcase used previously, which he gave to D4.
G G
27. At about 1915 hours, D2, D3 and D4 entered the H & M
H H
store with the bags. They left in a taxi from Festival Walk at
I
about 1940 hours. I
J Charge 5 J
K 28. At about 2005 hours, D2, D3 and D4 entered H & M at K
Canton Road, Tsim Sha Tsui. This is Charge 5.
L L
29. D3 and D4 still had the bags. 10 minutes later, they
M M
left and returned to Yuen Long.
N N
The arrest
O O
30. At about 2130 hours on 8 November last, police went to
P P
the flat and demanded entry. At the same time, they observed a
male and female climb from the flat and items being thrown from
Q Q
the flat.
R R
31. A few minutes later, police intercepted D3 and D4 as
S they were escaping from a restaurant at the ground floor. S
T T
32. At about 2200 hours, D1 opened the door and let the
police in. D1, D2, and D2’s two daughters were in the flat; also
U U
CRT31/19.9.2011/ML 5 DCCC54/2011/Sentence
V V
A the man seen with D1 at Festival Walk previously. D3 and D4 were A
taken back to the flat. D1 to D4 were arrested and cautioned.
B B
33. A search revealed, amongst other things, a suitcase,
C C
rolls of tin foils, rolls of adhesive tape, containers of
garments, notebooks, and other garments in the shower tray and
D D
washing machines, some still with anti-theft devices attached.
E E
34. Thrown out of the flat were the altered bag and
F suitcase, three other altered bags, H & M garments and F
accessories, a nylon bag of garments, and keys.
G G
35. The garments and accessories were:
H H
I
(i) 462 garments of H & M; I
J (ii) 28 garments of Divided; J
K (iii) 329 garments of other brands; and K
L L
(iv) 9 H & M accessories.
M M
36. Some of the H & M garments still had anti-theft
N devices attached. N
O 37. D1 and D2 denied the offences. O
P P
38. D3, in a video recorded interview, admitted being an
illegal immigrant (Charge 8) and stealing from H & M in Tsim Sha
Q Q
Tsui in November 2010, using the bag which he had altered. He
R was asked to flee when the police came. R
S 39. D4, in a video recorded interview, admitted she was an S
illegal immigrant (Charge 10). She met D3 on the street and he
T T
asked her to steal with him. She stole about 10 garments from
H & M at Tsim Sha Tsui. She also stole from H & M at Central and
U U
CRT31/19.9.2011/ML 6 DCCC54/2011/Sentence
V V
A Tsim Sha Tsui with D3. The suitcase was altered by her and D3. A
She used the bag on 2, 3 and 8 November.
B B
40. 364(392?) H & M garments, 9 accessories and 5 Divided
C C
garments were identified as stolen. The status of the rest could
not be confirmed.
D D
E 41. Both D3 and D4 were the subject of deportation orders E
(Charges 9 and 11).
F F
42. Various fingerprints were found on items.
G G
43. D1 admitted to 13 previous convictions on
H H
12 occasions; D2 to 10 previous convictions on seven occasions;
I
D3 to 13 previous convictions on five occasions; D4 to two I
previous convictions on one occasion.
J J
44. Miss Fung, for the prosecution, produced a copy of a
K notice served on each defendant under the provisions of the K
Organised and Serious Crimes Ordinance, Cap.455, seeking a
L L
determination of organised crime under section (b) of the
definition.
M M
N 45. The position taken by defence counsel was either they N
did not wish to comment on this nor oppose it.
O O
46. The application related to each of the conspiracy
P P
charges.
Q Q
47. Miss Fung provided various sentencing authorities for
R my guidance. These, I noted. There was no comment made by R
either prosecution or defence.
S S
48. Mr Cheng entered mitigation on behalf of D1. He told
T T
me he is 44 years of age and prior to arrest had been employed
as a fish stall assistant earning some $10,000 per month. Most
U U
CRT31/19.9.2011/ML 7 DCCC54/2011/Sentence
V V
A of his family resided in Vietnam save for one sister in Hong A
Kong.
B B
49. He had pleaded guilty to two charges of conspiracy to
C C
steal and one of dealing with property the proceeds of an
indictable offence.
D D
E 50. His prime mitigation was his plea of guilty which was E
conceded to have been not at the first available opportunity,
F being at the close of the prosecution case. However, I was asked F
to note and give allowance for the manner in which the vast
G G
majority, indeed, effectively, the whole of the prosecution
case, had been agreed. Mr Cheng indicated he had no comment on
H H
the OSCO application.
I I
51. In respect of D2, he told me she was 41 years of age,
J the mother of two daughters aged 10 and 11, and living off J
welfare payments of $9,000 per month. The girls were being cared
K for by friends. K
L L
52. She had pleaded guilty to five offences of conspiracy
to steal and guilty to one of dealing with property the proceeds
M M
of an indictable offence.
N N
53. He also made the point that she too had effectively
O admitted the whole of the prosecution case. O
P P
54. He produced one sentencing authority, HKSAR v Aktas
Alim & Another, DCCC1061/2009, where for conspiracy to steal
Q Q
involving a misuse of ATM machines yielding $87,000, I took as a
R starting point three years for each defendant. R
S 55. Mr Yuen mitigated on behalf of D3. S
T T
56. First of all, he said he now wished to change the
basis of the plea of guilty to involve D1 and D2 in the
U U
CRT31/19.9.2011/ML 8 DCCC54/2011/Sentence
V V
A conspiracy. Initially, as I have previously said, it had been A
proffered on the basis of involving only D4. In my opinion, this
B makes very little difference. B
C C
57. D3 is 50 years of age, divorced with two daughters in
Vietnam, both in their 20s. He noted my indication that as
D D
D3 had been willing to plead guilty from the outset, that I
E would allow the full discount of one-third from the sentence. E
F 58. He asked me to apply the principle of totality. He F
submitted that it seemed that all stolen property related to the
G G
five conspiracy offences had been recovered.
H H
59. In respect of Charge 9, he pointed out that this was
I
the fourth conviction for a breach of deportation order and that I
D3 had already served 54 months’ imprisonment for previous
J offences. He said he could not oppose the OSCO application. J
K 60. Mr So entered mitigation for D4. K
L L
61. He made the point that she had pleaded guilty to all
offences at an early stage, well before the others.
M M
N 62. He told me she was 50 years of age, married with three N
children in Vietnam. Her husband has suffered from mental
O illness for over 10 years and she is the breadwinner of the O
family. She had been motivated by hardship rather than malice to
P P
commit these crimes. Her eldest child is 25 and looking for
employment; her second, 20, at university; and the third child
Q Q
in the final year at school.
R R
63. He said that he wished to adopt any favourable points
S made by other counsel on behalf of D4. He did not seek to oppose S
the OSCO applications.
T T
64. I turn now to the sentences themselves.
U U
CRT31/19.9.2011/ML 9 DCCC54/2011/Sentence
V V
A A
65. Arriving at the sentences, I have taken fully into
B account the mitigation advanced by each of counsel. I noted the B
facts and the nature of the charges.
C C
66. I deal, first of all, with Charges 1 to 6, relating to
D D
conspiracy to steal and dealing with those goods.
E E
67. Whilst the prosecution has not be able to provide me
F with any set valuation of the stolen goods, it is self-evident F
that given the number of goods, that this was a large-scale
G G
operation involving planning, which is the essence of conspiracy
and careful execution.
H H
I
68. The use of the lined bag and lined suitcase is an I
aggravating feature, as is the fact that you operated as a gang
J working together. J
K 69. I do make the point that I am conscious of and remind K
myself of the fact that I am dealing with you not for stealing
L L
but for the agreement to steal. It is the conspiracy.
M M
70. As the prosecution cannot again say this, I do assume
N that all the goods have been recovered. N
O 71. A major point of mitigation that has been put forward, O
of course, is your pleas of guilty at various stages.
P P
72. I do note that you all have criminal records, D4,
Q Q
yours being on the light side.
R R
73. Taking into account all the circumstances I have
S mentioned, in respect of Charges 1 to 5 I take as a general S
starting point on each 3 years’ imprisonment, that is,
T T
36 months.
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CRT31/19.9.2011/ML 10 DCCC54/2011/Sentence
V V
A 74. D3, you had been prepared to admit a conspiracy from A
the outset, even though at first, not with D1 and D2 but simply
B with D4. Indeed, it is my opinion that is what should have been B
done from the outset.
C C
75. It was a matter for the court to resolve the mechanics
D D
of the conviction. It is well-established law, in fact, that the
E charge is complete when a person conspires with any of the co- E
conspirators. From the sentencing point of view, it does not
F affect the seriousness of the charge. F
G G
76. Therefore, in fairness to you, I am taking the view
that you are entitled to a full discount.
H H
I
77. D4, you pleaded guilty from the outset, so you are, as I
of right, entitled to a full discount.
J J
78. D1 and D2, you pleaded guilty at the close of the
K prosecution case, having admitted the prosecution evidence in K
total. I understand that the two prosecution witnesses called
L L
were not at the behest of your counsel nor yourselves, and were,
in my opinion, largely unnecessary.
M M
N 79. Therefore, whilst you are not entitled to the full N
discount, in my opinion, you are entitled to a higher-than-
O normal substantial discount. That discount will be 25 per cent. O
P P
80. In respect of the charges of conspiracy to steal, I
determine these offences to be organised crimes in that they are
Q Q
related to the activities of two or more persons associated
R together solely or partly for the purpose of committing two or R
more acts, namely, conspiracy to steal, being schedule 1
S offences involving substantial planning and organisation. S
T T
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CRT31/19.9.2011/ML 11 DCCC54/2011/Sentence
V V
A 81. Therefore, an enhanced sentence is, in my opinion, A
called for. The enhancement will be set at one-third, 33⅓ per
B cent. B
C C
82. In arriving at the actual sentence, I applied the
principles of HKSAR v Tam Wai Po, CACC32/1998. Under that case,
D D
in respect of these offences, I arrive at the sentence I would
E have imposed were it not for enhancement. I then enhanced to E
arrive at the sentence to be given.
F F
83. The starting point, as I have said, is 36 months. I
G G
have indicated the percentage of discount that you will receive.
I also note that these offences are part of an overall course of
H H
conduct.
I I
84. D1, you would be sentenced to 27 months on each
J sentence, 3 months of Charge 2 being consecutive to Charge 1; J
24 months, therefore, being concurrent. That is a total of
K 30 months’ imprisonment. K
L L
85. D2, D3 and D4, you are each involved in all five
conspiracies. Therefore, the sentence you would receive would be
M M
higher.
N N
86. D2, you would be sentenced to 27 months on each of the
O five charges, 9 months of Charge 2 being consecutive and O
18 months being concurrent. That is a total of 36 months.
P P
87. D3, you would be sentenced to 24 months on each of the
Q Q
five charges, 9 months of Charge 2 being consecutive, 15 months
R being concurrent, a total of 33 months’ imprisonment. R
S 88. D4, exactly the same sentence as D3. That is 24 months S
on each offence, 9 months consecutive on Charge 2, 15 months
T T
concurrent, all other periods being concurrent. That is a total
of 33 months.
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CRT31/19.9.2011/ML 12 DCCC54/2011/Sentence
V V
A A
89. Each of these sentences then enhanced by one-third, as
B I ruled previously. Seeking to achieve as much simplicity and B
clarity as possible, what I am going to do is the enhanced
C C
sentences will be imposed on each of the offences that you are
convicted of and will be served concurrently.
D D
E 90. D1, therefore, on each of the two offences, you go to E
prison for 40 months concurrent.
F F
91. D2, on each of the five offences, 48 months concurrent
G G
on each.
H H
92. D3 and D4, 44 months on each, concurrent.
I I
93. I move to Charge 6.
J J
94. In respect of Charge 6, I take a starting point of
K 15 months’ imprisonment reduced to 10. In fairness, I applied K
the principle of totality in this case.
L L
95. Therefore, D1, you will serve the 10 months in the
M M
following way: 8 months will be concurrent and 2 months will be
N consecutive. You will go to prison in total for 42 months. N
O 96. D2, you will serve your 10 months in exactly the same O
way: 8 months concurrent to your sentence of 48 months, and
P P
2 months consecutive. You will go to prison for an overall total
of 50 months.
Q Q
R 97. D3, on Charge 8, that is the unlawful remaining, you R
will go to prison for the standard 15 months.
S S
98. In respect of Charge 9, this is your fourth
T T
conviction, I am told by Mr Yuen, and that is confirmed by the
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CRT31/19.9.2011/ML 13 DCCC54/2011/Sentence
V V
A record, for breach of deportation order. That is an alarming A
level of persistence.
B B
99. I take a starting point of 30 months’ imprisonment,
C C
reduced to 20 months. However, I do apply the principle of
totality. These two sentences for 8 and 9 will be concurrent
D D
with each other but consecutive to Charges 1 to 5.
E E
100. That is a total of 64 months’ imprisonment, 5 years
F 4 months. F
G G
101. D4, in respect of Charge 10 for unlawfully remaining,
I take the standard penalty of 15 months’ imprisonment; Charge
H H
11, I take as a starting point 27 months reduced to 18 months.
I I
102. Applying the principle of totality, these will be
J served concurrent to each other and also the 18 months will be J
served in this way: 16 months will be consecutive, making a
K total of 60 months’ imprisonment, 2 months will be concurrent. K
L L
103. Finally I would like to record my thanks to counsel
for their assistance in this case.
M M
N N
O O
Tallentire
P District Judge P
Q Q
R R
S S
T T
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CRT31/19.9.2011/ML 14 DCCC54/2011/Sentence
V V
A A
DCCC54/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 54 OF 2011
C C
----------------------
D D
HKSAR
E v. E
Nguyen The Cuong (D1)
F F
Tran Thi Thuy Nga (D2)
Nguyen Anh Cuong (D3)
G Bui Thi Phu (D4) G
----------------------
H H
Before: H H Judge Tallentire
I
Date: 19 September 2011 at 2.32 pm I
Present: Ms Catherine Fung, Counsel on fiat, for HKSAR
Mr Cheng Kee-tin Sky, instructed by May Cheng & Co.,
J assigned by the Director of Legal Aid, for the 1st and J
2nd Defendants
Mr Yuen Kwok-wah Bernard, instructed by Lily Fenn &
K Partners, assigned by the Director of Legal Aid, for K
the 3rd Defendant
L Mr So Kai-ming Selwyn, instructed by Messrs Tse Yuen L
Ting Wong, assigned by the Director of Legal Aid, for
the 4th defendant
M M
Offence: (1)-(5) Conspiracy to steal (串謀盜竊罪)
(6) Dealing with property known or believed to
N N
represent proceeds of an indictable offence (處理已知道
或相信為代表從可公訴罪行的得益的財產)
O (7) Possession of a forged identity card (管有偽造身分 O
證)
P (8) & (10) Remaining in Hong Kong without the authority P
of the Director of Immigration after having landed
unlawfully in Hong Kong (在香港非法入境後未得入境事務處處長授
Q Q
權而留在香港)
(9) & (11) Breach of deportation order (違反遞解離境令)
R R
---------------------
S Reasons for Sentence S
T --------------------- T
U U
CRT31/19.9.2011/ML 1 DCCC54/2011/Sentence
V V
A 1. I make a general comment. You will appreciate that A
this has been somewhat complicated in view of the number of
B charges and the way in which the matter has evolved. B
C C
2. D1, you originally pleaded not guilty to two charges
of conspiracy to steal, each contrary to section 9 of the Theft
D D
Ordinance and sections 159A and C of the Crimes Ordinance,
E Cap.200, and you also denied one offence of dealing with E
property known or believed to represent the proceeds of an
F indictable offence, contrary to sections 25(1) and (3) of the F
Organised and Serious Crimes Ordinance, Cap.455.
G G
3. D2, you pleaded not guilty to five charges of
H H
conspiracy to steal and not guilty also to one offence of
I
dealing with property known or believed to represent proceeds of I
an indictable offence. Additionally, you denied one offence of
J possession of a forged ID card, contrary to section 7A(1) of the J
Registration of Persons Ordinance, Cap.177.
K K
4. D3, you pleaded not guilty to five offences of
L L
conspiracy to steal and guilty to one offence of remaining in
Hong Kong, contrary to section 38(1)(b) of the Immigration
M M
Ordinance, Cap.115, and guilty also to breach of a deportation
N order, contrary to section 43(1)(a) of the Immigration N
Ordinance, Cap.115.
O O
5. D4, you pleaded guilty to five offences of conspiracy
P P
to steal and guilty to one offence of remaining in Hong Kong
without the authority of the Director of Immigration, contrary
Q Q
to section 38(1)(b) of the Immigration Ordinance, Cap.155, and
R guilty to one offence of breach of a deportation order, contrary R
to section 43(1)(a) of the Immigration Ordinance, Cap.115.
S S
6. You admitted the brief facts and I convicted you.
T T
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CRT31/19.9.2011/ML 2 DCCC54/2011/Sentence
V V
A 7. D3, you had the facts regarding Charges 8 and 9 put to A
you and you were convicted on their admission.
B B
8. At the close of the prosecution case, Mr Cheng, on
C C
behalf of you, D1, on Charges 1, 2 and 6, and on behalf of you,
D2, in respect of Charges 1 to 7, made submissions of no case to
D D
answer.
E E
9. Mr Yuen, on behalf of D3, made similar submissions on
F Charges 1 to 5. F
G G
10. For reasons delivered and recorded in the court
record, I found there was a case to answer in respect of each
H H
and every one of those charges.
I I
11. Thereafter, D3 applied to change his plea to one of
J guilty in respect of Charges 1 to 5, initially on the basis that J
he had conspired with D4; and D1 on Charges 1, 2 and 6; and D2
K on Charges 1 to 6 made similar applications. K
L L
12. D2 maintained her plea of not guilty in respect of
Charge 7. This was acceptable to the prosecution.
M M
N 13. I allowed the change of pleas and convicted each of N
the defendants on the prosecution case which had now closed.
O O
14. Charge 7 was left on file, not be to be proceeded with
P P
without leave of this court or the Court of Appeal.
Q Q
15. Briefly, the facts are as follows.
R R
16. There are seven H & M stores in Hong Kong selling
S clothes of the H & M and Divided brand. The garments are S
protected by anti-theft security devices which are removed on
T T
payment. If not removed, the alarm would be activated. However,
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A if they are placed in a container wrapped in tin foil, the alarm A
would not be activated.
B B
Charge 1
C C
17. D1 and D2 resided at Flat D, 6th floor of Golden Hall
D D
Building, Castle Peak Road, Yuen Long.
E E
18. At about 1745 hours on 2 November 2010, police saw
F D1 to 4 leaving the building. D3 was carrying a black bag and F
D4 a suitcase, both of which had been lined with tin foil.
G G
19. They went to the H & M store at Queen’s Road Central,
H H
entering there at about 1825 hours. They returned to the flat at
I
about 1955 hours. I
J 20. CCTV had captured D2 to D4 inside the shop. J
K Charge 2 K
L L
21. At about 1800 hours on 3 November last, police saw
D1 to D4 leave the Golden Hall Building. D3 and D4 carried the
M M
same altered bags.
N N
22. At about 1845 hours, they entered the H & M store at
O Elements. D1 left shortly thereafter; D2 to D4 at about O
1915 hours.
P P
Charge 3
Q Q
R 23. At about 1950 hours that same day, D2 to D4 entered R
the H & M store at Canton Road, Tsim Sha Tsui. D3 and D4 still
S carried the same bags. At about 2015 hours they left and S
returned to the building.
T T
24. CCTV had captured D3 inside the shop.
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A A
Charge 4
B B
25. At about 1810 hours on 8 November last, police saw D1,
C C
D2 and D4 leave the building and head for Yuen Long West Railway
Station. D4 carried a black suitcase. D3, carrying the same bag
D D
as on previous occasions, joined them on the train.
E E
26. They went to Festival Walk. D1 met a man and got the
F suitcase D4 was carrying. He opened it and took out the other F
suitcase used previously, which he gave to D4.
G G
27. At about 1915 hours, D2, D3 and D4 entered the H & M
H H
store with the bags. They left in a taxi from Festival Walk at
I
about 1940 hours. I
J Charge 5 J
K 28. At about 2005 hours, D2, D3 and D4 entered H & M at K
Canton Road, Tsim Sha Tsui. This is Charge 5.
L L
29. D3 and D4 still had the bags. 10 minutes later, they
M M
left and returned to Yuen Long.
N N
The arrest
O O
30. At about 2130 hours on 8 November last, police went to
P P
the flat and demanded entry. At the same time, they observed a
male and female climb from the flat and items being thrown from
Q Q
the flat.
R R
31. A few minutes later, police intercepted D3 and D4 as
S they were escaping from a restaurant at the ground floor. S
T T
32. At about 2200 hours, D1 opened the door and let the
police in. D1, D2, and D2’s two daughters were in the flat; also
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A the man seen with D1 at Festival Walk previously. D3 and D4 were A
taken back to the flat. D1 to D4 were arrested and cautioned.
B B
33. A search revealed, amongst other things, a suitcase,
C C
rolls of tin foils, rolls of adhesive tape, containers of
garments, notebooks, and other garments in the shower tray and
D D
washing machines, some still with anti-theft devices attached.
E E
34. Thrown out of the flat were the altered bag and
F suitcase, three other altered bags, H & M garments and F
accessories, a nylon bag of garments, and keys.
G G
35. The garments and accessories were:
H H
I
(i) 462 garments of H & M; I
J (ii) 28 garments of Divided; J
K (iii) 329 garments of other brands; and K
L L
(iv) 9 H & M accessories.
M M
36. Some of the H & M garments still had anti-theft
N devices attached. N
O 37. D1 and D2 denied the offences. O
P P
38. D3, in a video recorded interview, admitted being an
illegal immigrant (Charge 8) and stealing from H & M in Tsim Sha
Q Q
Tsui in November 2010, using the bag which he had altered. He
R was asked to flee when the police came. R
S 39. D4, in a video recorded interview, admitted she was an S
illegal immigrant (Charge 10). She met D3 on the street and he
T T
asked her to steal with him. She stole about 10 garments from
H & M at Tsim Sha Tsui. She also stole from H & M at Central and
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A Tsim Sha Tsui with D3. The suitcase was altered by her and D3. A
She used the bag on 2, 3 and 8 November.
B B
40. 364(392?) H & M garments, 9 accessories and 5 Divided
C C
garments were identified as stolen. The status of the rest could
not be confirmed.
D D
E 41. Both D3 and D4 were the subject of deportation orders E
(Charges 9 and 11).
F F
42. Various fingerprints were found on items.
G G
43. D1 admitted to 13 previous convictions on
H H
12 occasions; D2 to 10 previous convictions on seven occasions;
I
D3 to 13 previous convictions on five occasions; D4 to two I
previous convictions on one occasion.
J J
44. Miss Fung, for the prosecution, produced a copy of a
K notice served on each defendant under the provisions of the K
Organised and Serious Crimes Ordinance, Cap.455, seeking a
L L
determination of organised crime under section (b) of the
definition.
M M
N 45. The position taken by defence counsel was either they N
did not wish to comment on this nor oppose it.
O O
46. The application related to each of the conspiracy
P P
charges.
Q Q
47. Miss Fung provided various sentencing authorities for
R my guidance. These, I noted. There was no comment made by R
either prosecution or defence.
S S
48. Mr Cheng entered mitigation on behalf of D1. He told
T T
me he is 44 years of age and prior to arrest had been employed
as a fish stall assistant earning some $10,000 per month. Most
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A of his family resided in Vietnam save for one sister in Hong A
Kong.
B B
49. He had pleaded guilty to two charges of conspiracy to
C C
steal and one of dealing with property the proceeds of an
indictable offence.
D D
E 50. His prime mitigation was his plea of guilty which was E
conceded to have been not at the first available opportunity,
F being at the close of the prosecution case. However, I was asked F
to note and give allowance for the manner in which the vast
G G
majority, indeed, effectively, the whole of the prosecution
case, had been agreed. Mr Cheng indicated he had no comment on
H H
the OSCO application.
I I
51. In respect of D2, he told me she was 41 years of age,
J the mother of two daughters aged 10 and 11, and living off J
welfare payments of $9,000 per month. The girls were being cared
K for by friends. K
L L
52. She had pleaded guilty to five offences of conspiracy
to steal and guilty to one of dealing with property the proceeds
M M
of an indictable offence.
N N
53. He also made the point that she too had effectively
O admitted the whole of the prosecution case. O
P P
54. He produced one sentencing authority, HKSAR v Aktas
Alim & Another, DCCC1061/2009, where for conspiracy to steal
Q Q
involving a misuse of ATM machines yielding $87,000, I took as a
R starting point three years for each defendant. R
S 55. Mr Yuen mitigated on behalf of D3. S
T T
56. First of all, he said he now wished to change the
basis of the plea of guilty to involve D1 and D2 in the
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A conspiracy. Initially, as I have previously said, it had been A
proffered on the basis of involving only D4. In my opinion, this
B makes very little difference. B
C C
57. D3 is 50 years of age, divorced with two daughters in
Vietnam, both in their 20s. He noted my indication that as
D D
D3 had been willing to plead guilty from the outset, that I
E would allow the full discount of one-third from the sentence. E
F 58. He asked me to apply the principle of totality. He F
submitted that it seemed that all stolen property related to the
G G
five conspiracy offences had been recovered.
H H
59. In respect of Charge 9, he pointed out that this was
I
the fourth conviction for a breach of deportation order and that I
D3 had already served 54 months’ imprisonment for previous
J offences. He said he could not oppose the OSCO application. J
K 60. Mr So entered mitigation for D4. K
L L
61. He made the point that she had pleaded guilty to all
offences at an early stage, well before the others.
M M
N 62. He told me she was 50 years of age, married with three N
children in Vietnam. Her husband has suffered from mental
O illness for over 10 years and she is the breadwinner of the O
family. She had been motivated by hardship rather than malice to
P P
commit these crimes. Her eldest child is 25 and looking for
employment; her second, 20, at university; and the third child
Q Q
in the final year at school.
R R
63. He said that he wished to adopt any favourable points
S made by other counsel on behalf of D4. He did not seek to oppose S
the OSCO applications.
T T
64. I turn now to the sentences themselves.
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A A
65. Arriving at the sentences, I have taken fully into
B account the mitigation advanced by each of counsel. I noted the B
facts and the nature of the charges.
C C
66. I deal, first of all, with Charges 1 to 6, relating to
D D
conspiracy to steal and dealing with those goods.
E E
67. Whilst the prosecution has not be able to provide me
F with any set valuation of the stolen goods, it is self-evident F
that given the number of goods, that this was a large-scale
G G
operation involving planning, which is the essence of conspiracy
and careful execution.
H H
I
68. The use of the lined bag and lined suitcase is an I
aggravating feature, as is the fact that you operated as a gang
J working together. J
K 69. I do make the point that I am conscious of and remind K
myself of the fact that I am dealing with you not for stealing
L L
but for the agreement to steal. It is the conspiracy.
M M
70. As the prosecution cannot again say this, I do assume
N that all the goods have been recovered. N
O 71. A major point of mitigation that has been put forward, O
of course, is your pleas of guilty at various stages.
P P
72. I do note that you all have criminal records, D4,
Q Q
yours being on the light side.
R R
73. Taking into account all the circumstances I have
S mentioned, in respect of Charges 1 to 5 I take as a general S
starting point on each 3 years’ imprisonment, that is,
T T
36 months.
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A 74. D3, you had been prepared to admit a conspiracy from A
the outset, even though at first, not with D1 and D2 but simply
B with D4. Indeed, it is my opinion that is what should have been B
done from the outset.
C C
75. It was a matter for the court to resolve the mechanics
D D
of the conviction. It is well-established law, in fact, that the
E charge is complete when a person conspires with any of the co- E
conspirators. From the sentencing point of view, it does not
F affect the seriousness of the charge. F
G G
76. Therefore, in fairness to you, I am taking the view
that you are entitled to a full discount.
H H
I
77. D4, you pleaded guilty from the outset, so you are, as I
of right, entitled to a full discount.
J J
78. D1 and D2, you pleaded guilty at the close of the
K prosecution case, having admitted the prosecution evidence in K
total. I understand that the two prosecution witnesses called
L L
were not at the behest of your counsel nor yourselves, and were,
in my opinion, largely unnecessary.
M M
N 79. Therefore, whilst you are not entitled to the full N
discount, in my opinion, you are entitled to a higher-than-
O normal substantial discount. That discount will be 25 per cent. O
P P
80. In respect of the charges of conspiracy to steal, I
determine these offences to be organised crimes in that they are
Q Q
related to the activities of two or more persons associated
R together solely or partly for the purpose of committing two or R
more acts, namely, conspiracy to steal, being schedule 1
S offences involving substantial planning and organisation. S
T T
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A 81. Therefore, an enhanced sentence is, in my opinion, A
called for. The enhancement will be set at one-third, 33⅓ per
B cent. B
C C
82. In arriving at the actual sentence, I applied the
principles of HKSAR v Tam Wai Po, CACC32/1998. Under that case,
D D
in respect of these offences, I arrive at the sentence I would
E have imposed were it not for enhancement. I then enhanced to E
arrive at the sentence to be given.
F F
83. The starting point, as I have said, is 36 months. I
G G
have indicated the percentage of discount that you will receive.
I also note that these offences are part of an overall course of
H H
conduct.
I I
84. D1, you would be sentenced to 27 months on each
J sentence, 3 months of Charge 2 being consecutive to Charge 1; J
24 months, therefore, being concurrent. That is a total of
K 30 months’ imprisonment. K
L L
85. D2, D3 and D4, you are each involved in all five
conspiracies. Therefore, the sentence you would receive would be
M M
higher.
N N
86. D2, you would be sentenced to 27 months on each of the
O five charges, 9 months of Charge 2 being consecutive and O
18 months being concurrent. That is a total of 36 months.
P P
87. D3, you would be sentenced to 24 months on each of the
Q Q
five charges, 9 months of Charge 2 being consecutive, 15 months
R being concurrent, a total of 33 months’ imprisonment. R
S 88. D4, exactly the same sentence as D3. That is 24 months S
on each offence, 9 months consecutive on Charge 2, 15 months
T T
concurrent, all other periods being concurrent. That is a total
of 33 months.
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A A
89. Each of these sentences then enhanced by one-third, as
B I ruled previously. Seeking to achieve as much simplicity and B
clarity as possible, what I am going to do is the enhanced
C C
sentences will be imposed on each of the offences that you are
convicted of and will be served concurrently.
D D
E 90. D1, therefore, on each of the two offences, you go to E
prison for 40 months concurrent.
F F
91. D2, on each of the five offences, 48 months concurrent
G G
on each.
H H
92. D3 and D4, 44 months on each, concurrent.
I I
93. I move to Charge 6.
J J
94. In respect of Charge 6, I take a starting point of
K 15 months’ imprisonment reduced to 10. In fairness, I applied K
the principle of totality in this case.
L L
95. Therefore, D1, you will serve the 10 months in the
M M
following way: 8 months will be concurrent and 2 months will be
N consecutive. You will go to prison in total for 42 months. N
O 96. D2, you will serve your 10 months in exactly the same O
way: 8 months concurrent to your sentence of 48 months, and
P P
2 months consecutive. You will go to prison for an overall total
of 50 months.
Q Q
R 97. D3, on Charge 8, that is the unlawful remaining, you R
will go to prison for the standard 15 months.
S S
98. In respect of Charge 9, this is your fourth
T T
conviction, I am told by Mr Yuen, and that is confirmed by the
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A record, for breach of deportation order. That is an alarming A
level of persistence.
B B
99. I take a starting point of 30 months’ imprisonment,
C C
reduced to 20 months. However, I do apply the principle of
totality. These two sentences for 8 and 9 will be concurrent
D D
with each other but consecutive to Charges 1 to 5.
E E
100. That is a total of 64 months’ imprisonment, 5 years
F 4 months. F
G G
101. D4, in respect of Charge 10 for unlawfully remaining,
I take the standard penalty of 15 months’ imprisonment; Charge
H H
11, I take as a starting point 27 months reduced to 18 months.
I I
102. Applying the principle of totality, these will be
J served concurrent to each other and also the 18 months will be J
served in this way: 16 months will be consecutive, making a
K total of 60 months’ imprisonment, 2 months will be concurrent. K
L L
103. Finally I would like to record my thanks to counsel
for their assistance in this case.
M M
N N
O O
Tallentire
P District Judge P
Q Q
R R
S S
T T
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V V