A A
B B
DCCC 1167/2012
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 1167 OF 2012 D
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E HKSAR E
v
F F
PETROVIC Branislav (D1)
G PETROVIC Vesna (D2) G
____________
H H
Before: HH Judge Dufton
I Date: 15 March 2013 I
Present: Ms Lorinda Lau, counsel on fiat, for HKSAR.
J Mr Kevin Egan, instructed by Robertsons, for the Defendants. J
Offences: (1) –(3)Theft (盜竊罪)
K K
(4) &(5) Using a forged travel document
(使用偽造的旅行證件)
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(6) Possessing false instruments (管有虛假文書)
M REASONS FOR SENTENCE M
N 1. Mrs Petrovic pleads guilty to three charges of theft of jewellery, N
contrary to section 9 of the Theft Ordinance, Chapter 210 (charges 1-3).
O O
Mr Petrovic earlier pleaded guilty in the Tsuen Wan Magistracy to the
P same three charges and one further charge of theft when he was sentenced P
to 12 months imprisonment.
Q Q
R 2. Both Mr & Mrs Petrovic each plead guilty to a charge of using a R
forged travel document, contrary to sections 42(2)(b) of the Immigration
S S
Ordinance, Chapter 115 (charges 4 & 5); and one joint charge of
T possession of false instruments, contrary to section 75(1) of the Crimes T
Ordinance, Chapter 200 (charge 6).
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V V
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A A
B B
Charges 1-3
C C
3. In summary on the 18 September last year Mr & Mrs Petrovic
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arrived in Hong Kong. The next day they attended the Hong Kong
E Jewellery and Gem Fair 2012 held at the AsiaWorld-Expo. At about E
14:26 Mr & Mrs Petrovic attended the booth of ABA Emerald SAS C1
F F
when Mr Petrovic requested the owner to show him various pieces of
G jewellery. Mr Petrovic was then seen to put one piece of jewellery in the G
left pocket of his jacket and then leave together with Mrs Petrovic
H H
(charge 1).
I I
4. At 16:05 the owner saw Mr & Mrs Petrovic again and called the
J J
police who intercepted them. During a search of Mrs Petrovic’s bag the
K police found the piece of jewellery stolen from ABA Emerald together K
with jewellery belonging to Sunny Gems and Bay’s Gem & Pearl
L L
Company Limited which had also been stolen from booths they had set
M up at the fair (charges 2 & 3). M
N N
5. The total value of the jewellery was US$18,600. The fourth
O charge to which Mr Petrovic pleaded guilty in the Magistracy was also O
theft of jewellery at the fair, the value of which was US$21,014.
P P
Q Charges 4-6 Q
R R
6. Mr & Mrs Petrovic appeared in court on the 21 September when
S they were granted bail. Conditions of bail included the surrendering of S
their travel documents and that they were not allowed to leave Hong
T T
Kong.
U U
V V
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A A
B B
7. On the 12 October Mr & Mrs Petrovic went to the Departure Hall
C at the Hung Hom Control Point in an attempt to leave for Guangzhou by C
train. They both presented a forged Bulgarian passport. Immigration
D D
officers suspected the travel documents were forgeries and on making
E enquiries Mr & Mrs Petrovic admitted their real names (charges 4 & 5). E
F F
8. The police were called and arrested Mr & Mrs Petrovic. A search
G of the luggage of Mrs Petrovic revealed a forged Bulgarian identity card G
and driving licence in the same name as the forged passport she used. In
H H
a video interview Mr Petrovic said he purchased the forged documents
I from an unknown person in Tsim Sha Tsui for US$3,000. I
J J
9. In passing sentence I have carefully considered everything said
K on behalf of Mr & Mrs Petrovic by Mr Egan, including the effect the K
arrest and incarceration has had upon their family in Sweden; the health
L L
condition of both Mr & Mrs Petrovic together with the background report
M on Mr Petrovic prepared in the Magistracy. I take into account that both M
Mr & Mrs Petrovic have no previous convictions.
N N
O Theft O
P P
10. Mr Egan submits this is not a case where Mr & Mrs Petrovic
Q came to Hong Kong for the purpose of stealing jewellery. One of their Q
daughters was studying jewellery design in Italy and intended to open a
R R
shop in Sweden. Therefore Mr & Mrs Petrovic first went to a jewellery
S fair in Bangkok where they purchased a large quantity of jewellery to be S
used as stock-in-trade for their daughter’s shop. After going to Bangkok
T T
they came to Hong Kong and attended the fair at AsiaWorld-Expo.
U U
V V
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A A
B B
11. Mr Petrovic on seeing the lack of security at the fair was tempted
C into stealing the jewellery. The owner of ABA Emerald although seeing C
that Mr Petrovic put the jewellery in his pocket could not do anything to
D D
prevent him leaving as she needed to first secure the rest of her jewellery.
E The owners of Sunny Gems and Bay’s Gem & Pearl were not even aware E
jewellery had been stolen until the police recovered the jewellery. This
F F
Mr Egan explains is not to undermine the seriousness of the thefts but to
G explain that they were spontaneous and not planned. G
H H
12. Mr Egan describes Mrs Petrovic as a loyal wife accompanying
I her husband on the trip to Asia and that she very much was the passive I
buyer in the purchase of jewellery. Mr Egan explained Mrs Petrovic’s
J J
role in the theft of the jewellery was more akin to that of an accessory
K after the fact in that she assisted her husband by keeping the jewellery, K
knowing the jewellery had been stolen. Taking this into account together
L L
with the fact Mr Petrovic faced one further charge of theft of jewellery
M valued at US$21,014, Mr Egan submits that I should distinguish between M
the criminality of Mr & Mrs Petrovic. I agree.
N N
O 13. However I must say a starting point of 18 months imprisonment O
for theft of jewellery valued at nearly US$40,000 from an international
P P
trade fair thereby harming the international reputation of Hong Kong
Q appears a little on the light side. Having said that I do not have the Q
benefit of the reasons for sentence.
R R
S 14. I am satisfied the proper starting point after trial on each of the S
theft charges is 12 months imprisonment. Giving Mrs Petrovic full credit
T T
for her pleas of guilty she is convicted and sentenced to 8 months
U U
V V
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A A
B B
imprisonment concurrent on each of charges 1, 2 & 3, the offences having
C been committed on the same day. C
D D
Forged travel documents and false instruments
E E
15. There are no guidelines for sentencing in respect of using a
F F
forged travel document. In R v. Yu Wing Wut CACC 346/1984 the Court
G of Appeal said the proper sentence on a plea was one of 18 months G
imprisonment. In that case an illegal immigrant had used a forged travel
H H
document in an attempt to leave Hong Kong to go to the Philippines.
I I
16. A starting point of 27 months imprisonment has been upheld for
J J
example in HKSAR v Pak Wan Lung CACC 573/1998 and HKSAR v
K Rakesh Kumar Sthapak [2005] 1 HKLRD 643. There are also similar K
cases where lower sentences have been imposed. Further in HKSAR v
L L
Tseung Yim Kwan CACC 531/2005 (a case concerning possession of a
M forged two-way permit) the Court of Appeal commented that the case of M
Yu Wing Wut was decided well before the policy of giving a one-third
N N
discount for a plea of guilty and therefore the Court in 1984 when
O judgment was given may not have had a starting point as high as 27 O
months in mind.
P P
Q 17. Using a forged travel document to leave Hong Kong and in doing Q
so attempt to evade justice is very serious. The use of a forged travel
R R
document in itself attracts a substantial prison sentence and as can be seen
S up to 27 months for a single offence. That the use is to evade justice S
aggravates the offence for which a higher sentence may be appropriate
T T
U U
V V
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A A
B B
depending on the circumstances. I note that at present there is no
C extradition agreement between Hong Kong and Sweden. C
D D
18. In my view a starting point of 27 months imprisonment is
E appropriate. Mr Egan has again submitted that I draw a distinction in the E
criminality of Mr & Mrs Petrovic on these charges. I disagree. Whilst
F F
Mr Petrovic was the one who obtained the forged travel documents the
G criminality of the charge is in their using and in this regard that G
criminality is the same. Full credit being given for their pleas of guilty
H H
Mr & Mrs Petrovic are convicted and sentenced to 18 months
I imprisonment on charges 4 & 5 respectively. I
J J
19. Charge 6 relates to a forged Bulgarian identity card and driving
K licence in the same name as the forged passport used by Mrs Petrovic. I K
am satisfied a starting point of 12 months imprisonment is appropriate.
L L
Full credit being given for their pleas of guilty Mr & Mrs Petrovic are
M convicted and sentenced to 8 months imprisonment on charge 6. M
N N
20. As indicated in court I am of the view this charge does not
O increase the criminality of Mrs Petrovic. Arguably as Mr Petrovic was O
the one who arranged the purchase of the forged documents his
P P
criminality is higher. However I am satisfied the criminality of Mr
Q Petrovic is fully reflected in the sentence for charge 4. Accordingly I Q
order the sentence on charge 6 to be served concurrent to charges 4 & 5.
R R
S S
T T
U U
V V
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A A
B B
Totality
C C
21. I now turn to consider the totality of sentence to be served by Mr
D D
& Mrs Petrovic. Mr Egan very properly accepts that the thefts and the
E use of forged travel documents are entirely separate and distinct offences E
for which consecutive sentences are appropriate. Mr Egan asks however
F F
I consider part concurrent on the grounds of totality.
G G
22. Whereas the criminality is different there is a link between the
H H
two sets of offences. In the circumstances I am satisfied a total sentence
I of 2 years imprisonment for Mr Petrovic and 1 year and 8 months for Mrs I
Petrovic properly reflect their criminality on the charges.
J J
K 23. Finally whilst I sympathise with Mr & Mrs Petrovic as to their K
health condition I am satisfied the prison authorities will closely monitor
L L
their health as they have already done so. Should there be deterioration in
M their health they can seek clemency from the executive. I am satisfied M
there are no strong humanitarian grounds to further reduce the sentences
N N
in this case.
O O
Sentence
P P
24. Sentence is as follows:
Q Q
Mr Petrovic
R R
Charge 4 – 18 months imprisonment;
S Charge 6 – 8 months imprisonment concurrent to charge 4. S
12 months consecutive and 6 months concurrent to the sentence he is now
T T
serving;
U U
V V
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A A
B B
Mrs Petrovic
C Charges 1-3 – 8 months imprisonment concurrent on each charge; C
Charge 5 – 18 months imprisonment;
D D
Charge 6 – 8 months imprisonment concurrent to charge 5;
E 12 months of the sentence on charges 5 & 6 to be served consecutive and E
6 months concurrent to charges 1-3.
F F
G The total sentence to be served by Mr Petrovic is 2 years imprisonment G
and by Mrs Petrovic is 1 year and 8 months imprisonment.
H H
I I
J J
K K
(D. J. DUFTON)
District Judge
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M M
N N
O O
P P
Q Q
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S S
T T
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