A A
DCCC 728/2014
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 728 OF 2014
C C
----------------------
D D
HKSAR
E v E
Wabhi Tri-wahyu
F also known as F
Wahyu Wabhi Tri,
G Supri Yatnak and G
Supriyatnak
H ---------------------- H
Before: HH Judge Stanley Chan
I Date: 30 September 2014 I
Present: Mr Wilson Choi, PP of the Department of Justice, for
J HKSAR J
Mr Brian Lewis Littlewood, of Littlewoods, assigned by
the Director of Legal Aid, for the defendant
K Offence: (1) Making a false representation to an Immigration K
Officer or Immigration Assistant lawfully acting
under or in the execution of Part II of the
L L
Immigration Ordinance (向根據或為執行《入境條例》第II部
而合法行事的入境事務主任或入境事務助理員作出虛假的申述)
M (2) Theft (盜竊罪) M
(3) Breach of deportation order (違反遞解離境令)
N N
---------------------
O Reasons for Sentence O
---------------------
P P
Q 1. The defendant pleaded guilty to two counts of Q
immigration-related offences and one count of theft. He was
R convicted accordingly. R
S S
Brief Facts
Charge 2
T T
2. On 8 July 2014 at 3:30 pm, the victim surnamed Wu
U (PW1) withdrew cash in the sum of $300,000 from his bank account U
at a Hang Seng Bank branch in Sheung Shui. PW1 put his money
CRT32/30.9.2014/SC 1 DCCC 728/2014/Sentence
V V
A A
into three envelopes in equal sum and kept the same in his
rucksack. When PW1 was walking through a subway at Po Shek Wu
B B
Road, he felt the defendant inserting his right hand into his
C rucksack. Defendant immediately withdrew his hand and stepped C
back. PW1 shouted loudly at the defendant that he was stealing
D his money. At this juncture, two police officers were patrolling D
in the vicinity. They gave chase after the defendant. When the
E E
defendant arrived at the staircase near Po Shek Wu Road, the
defendant bumped into another male. That male ran upstairs
F F
towards Po Shek Wu Road while the defendant ran towards San Wan
G Road. Eventually, the police officer intercepted the defendant. G
The defendant kept silent after being cautioned.
H H
3. PW1 found that one of the envelopes containing
I I
$100,000 was missing.
J J
Charge 3
K
4. Police investigation revealed that the defendant first K
came to Hong Kong on 19 February 2007 with an Indonesian
L passport numbered P113247 in the name of Supri Yatnak with the L
date of birth of 13 May 1984.
M M
5. The defendant was deported back to Jakarta on
N N
27 February 2012 under a deportation order dated
23 February 2012. The deportation order required the defendant
O O
to leave Hong Kong and prohibited the defendant from being in
P Hong Kong thereafter. P
Q 6. On 30 June 2014, the defendant came to Hong Kong on Q
the strength of an Indonesian passport numbered A724962 in the
R R
name of Wabhi Tri Wahyu with the date of birth of 27 July 1986.
S S
Charge 1
T 7. In the cautioned interview, the defendant confessed T
that he was deported from Hong Kong previously. Hence, the
U defendant used another identity to apply for a passport. He used U
CRT32/30.9.2014/SC 2 DCCC 728/2014/Sentence
V V
A A
the name of Wabhi Tri Wahyu with the date of birth of 27 July
1986 and obtained a new passport numbered A724962. The defendant
B B
claimed that his real name is Supri Yatnak with the date of
C birth of 13 May 1984 as stated in his previous passport. The C
defendant insisted that his new passport was issued by the
D Indonesian government. D
E E
Mitigation
8. The defendant is aged 28 and has a young son aged 5.
F F
He was unemployed in Indonesia and came to Hong Kong with a view
G of getting a job. When asked, defence lawyer said he has no G
instruction as to how the defendant financed his trip to
H Hong Kong. It was submitted that there were three aggravating H
features in this case: (1) the defendant had a similar
I I
conviction; (2) the sum of the cash stolen was a large sum and
could not be recovered; and (3) the defendant committed the
J J
offence while under a deportation order.
K K
9. Defence lawyer urged the court to pass a concurrent
L sentence on the immigration-related offences as the culpability L
of the offences was relatively the same. Without the defendant’s
M admission, there would be no evidence against him on Charge 1. M
The defendant wrote a mitigation letter saying that he committed
N N
the offence because of his friend. Defendant said he, Wabhi Tri
Wahyu, was truly sorry about what he did and apologised to the
O O
victim.
P P
Sentence
Q 10. The defendant is of 28 years old and married. He was Q
unemployed in Indonesia. The defendant had three convictions,
R R
and one of them was attempted theft back in 2009. Upon inquiry,
it was revealed that the theft offence was one of pickpocketing
S S
for which the defendant received a sentence of 2 years. The
T defendant was discharged from prison in February 2012 and was T
deported back to Indonesia thereafter. There is no application
U U
CRT32/30.9.2014/SC 3 DCCC 728/2014/Sentence
V V
A A
for enhancement of sentence under section 27 of the Organised
and Serious Crimes Ordinance by the prosecution.
B B
C 11. However, there were a number of aggravating features C
in this theft offence. The defendant came to Hong Kong on
D 30 June 2014 with a different name, Wabhi Tri Wahyu, even though D
the defendant confessed that it was a false name with a
E E
different birth date. There is no clear evidence as to which
version put forward by the defendant is real, that is, whether
F F
the defendant’s real name is Wabhi or Supri. In his mitigation
G letter, the defendant named himself as Wabhi. The defendant G
committed the present offence some eight days upon arrival in
H Hong Kong. If the defendant was unemployed, how could he finance H
his flight to and stay in Hong Kong? It would not be cheap for
I I
him. How could he have the money to get a new passport with a
different identity from his previous one, which is subject of
J J
the deportation order? The defendant was deported in February
K
2012 and returned to Hong Kong in June 2014 with a different K
passport. I could not speculate whether this defendant had used
L other means to come to Hong Kong. That also demonstrates how L
easy it was to circumvent the deportation order as the deportee
M could easily get another passport, even if it was a legal one, M
through different channel.
N N
12. Had the prosecution had evidence of using a false
O O
passport, heavier sentence is called for. It is a pity that the
P Indonesian government up to now has not responded to the inquiry P
made by the police as to the authenticity of the passport used
Q by the defendant on this occasion. Q
R R
13. In my view, the defendant came to Hong Kong, not for a
vacation, but with a clear intention to breach the deportation
S S
order and to commit crimes. He used a different identity to
T circumvent the deportation order. The defendant and his T
accomplice targeted the victim when the latter took cash from
U the bank. Eventually, the victim lost $100,000 in cash. The U
CRT32/30.9.2014/SC 4 DCCC 728/2014/Sentence
V V
A A
defendant passed the stolen property to his accomplice and hence
the money could not be recovered.
B B
C 14. The defendant was not the first offender of this theft C
charge. I considered the authorities of HKSAR v Ngo Van Huy
D [2005] 2 HKLRD 1 and HKSAR v Wong Kang Sun [2014] 1 HKLRD 622. D
Taking into account of those aggravating features, I used
E E
27 months as a starting point. Given the defendant’s plea, I
reduce the sentence for Charge 2 to 18 months’ imprisonment.
F F
G 15. As regards the immigration-related offences, for G
Charge 1, I accept that the prosecution has to rely on the
H defendant’s admission as the Indonesian government does not H
offer any real assistance in this matter. I would use the
I I
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
J J
deportation order, the defendant used a passport of different
K
identity with clear intention to commit a breach. He came to K
Hong Kong either to find a job, as said in the mitigation, or to
L commit a crime, as evidenced in the present offence. I adopt a L
starting point of 27 months. I reduce the sentence to 18 months
M because of his plea. I am also lenient to the defendant and M
order that the sentence of these two immigration offences to be
N N
run concurrently.
O O
16. However, the theft offence carries a different nature
P of criminality and the defendant was not acting alone. I P
consider the totality principle and order that the sentence
Q should run consecutively. Accordingly, I sentence the defendant Q
to a total term of 36 months’ imprisonment.
R R
S S
T T
(Stanley Chan)
District Judge
U U
CRT32/30.9.2014/SC 5 DCCC 728/2014/Sentence
V V
A A
DCCC 728/2014
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 728 OF 2014
C C
----------------------
D D
HKSAR
E v E
Wabhi Tri-wahyu
F also known as F
Wahyu Wabhi Tri,
G Supri Yatnak and G
Supriyatnak
H ---------------------- H
Before: HH Judge Stanley Chan
I Date: 30 September 2014 I
Present: Mr Wilson Choi, PP of the Department of Justice, for
J HKSAR J
Mr Brian Lewis Littlewood, of Littlewoods, assigned by
the Director of Legal Aid, for the defendant
K Offence: (1) Making a false representation to an Immigration K
Officer or Immigration Assistant lawfully acting
under or in the execution of Part II of the
L L
Immigration Ordinance (向根據或為執行《入境條例》第II部
而合法行事的入境事務主任或入境事務助理員作出虛假的申述)
M (2) Theft (盜竊罪) M
(3) Breach of deportation order (違反遞解離境令)
N N
---------------------
O Reasons for Sentence O
---------------------
P P
Q 1. The defendant pleaded guilty to two counts of Q
immigration-related offences and one count of theft. He was
R convicted accordingly. R
S S
Brief Facts
Charge 2
T T
2. On 8 July 2014 at 3:30 pm, the victim surnamed Wu
U (PW1) withdrew cash in the sum of $300,000 from his bank account U
at a Hang Seng Bank branch in Sheung Shui. PW1 put his money
CRT32/30.9.2014/SC 1 DCCC 728/2014/Sentence
V V
A A
into three envelopes in equal sum and kept the same in his
rucksack. When PW1 was walking through a subway at Po Shek Wu
B B
Road, he felt the defendant inserting his right hand into his
C rucksack. Defendant immediately withdrew his hand and stepped C
back. PW1 shouted loudly at the defendant that he was stealing
D his money. At this juncture, two police officers were patrolling D
in the vicinity. They gave chase after the defendant. When the
E E
defendant arrived at the staircase near Po Shek Wu Road, the
defendant bumped into another male. That male ran upstairs
F F
towards Po Shek Wu Road while the defendant ran towards San Wan
G Road. Eventually, the police officer intercepted the defendant. G
The defendant kept silent after being cautioned.
H H
3. PW1 found that one of the envelopes containing
I I
$100,000 was missing.
J J
Charge 3
K
4. Police investigation revealed that the defendant first K
came to Hong Kong on 19 February 2007 with an Indonesian
L passport numbered P113247 in the name of Supri Yatnak with the L
date of birth of 13 May 1984.
M M
5. The defendant was deported back to Jakarta on
N N
27 February 2012 under a deportation order dated
23 February 2012. The deportation order required the defendant
O O
to leave Hong Kong and prohibited the defendant from being in
P Hong Kong thereafter. P
Q 6. On 30 June 2014, the defendant came to Hong Kong on Q
the strength of an Indonesian passport numbered A724962 in the
R R
name of Wabhi Tri Wahyu with the date of birth of 27 July 1986.
S S
Charge 1
T 7. In the cautioned interview, the defendant confessed T
that he was deported from Hong Kong previously. Hence, the
U defendant used another identity to apply for a passport. He used U
CRT32/30.9.2014/SC 2 DCCC 728/2014/Sentence
V V
A A
the name of Wabhi Tri Wahyu with the date of birth of 27 July
1986 and obtained a new passport numbered A724962. The defendant
B B
claimed that his real name is Supri Yatnak with the date of
C birth of 13 May 1984 as stated in his previous passport. The C
defendant insisted that his new passport was issued by the
D Indonesian government. D
E E
Mitigation
8. The defendant is aged 28 and has a young son aged 5.
F F
He was unemployed in Indonesia and came to Hong Kong with a view
G of getting a job. When asked, defence lawyer said he has no G
instruction as to how the defendant financed his trip to
H Hong Kong. It was submitted that there were three aggravating H
features in this case: (1) the defendant had a similar
I I
conviction; (2) the sum of the cash stolen was a large sum and
could not be recovered; and (3) the defendant committed the
J J
offence while under a deportation order.
K K
9. Defence lawyer urged the court to pass a concurrent
L sentence on the immigration-related offences as the culpability L
of the offences was relatively the same. Without the defendant’s
M admission, there would be no evidence against him on Charge 1. M
The defendant wrote a mitigation letter saying that he committed
N N
the offence because of his friend. Defendant said he, Wabhi Tri
Wahyu, was truly sorry about what he did and apologised to the
O O
victim.
P P
Sentence
Q 10. The defendant is of 28 years old and married. He was Q
unemployed in Indonesia. The defendant had three convictions,
R R
and one of them was attempted theft back in 2009. Upon inquiry,
it was revealed that the theft offence was one of pickpocketing
S S
for which the defendant received a sentence of 2 years. The
T defendant was discharged from prison in February 2012 and was T
deported back to Indonesia thereafter. There is no application
U U
CRT32/30.9.2014/SC 3 DCCC 728/2014/Sentence
V V
A A
for enhancement of sentence under section 27 of the Organised
and Serious Crimes Ordinance by the prosecution.
B B
C 11. However, there were a number of aggravating features C
in this theft offence. The defendant came to Hong Kong on
D 30 June 2014 with a different name, Wabhi Tri Wahyu, even though D
the defendant confessed that it was a false name with a
E E
different birth date. There is no clear evidence as to which
version put forward by the defendant is real, that is, whether
F F
the defendant’s real name is Wabhi or Supri. In his mitigation
G letter, the defendant named himself as Wabhi. The defendant G
committed the present offence some eight days upon arrival in
H Hong Kong. If the defendant was unemployed, how could he finance H
his flight to and stay in Hong Kong? It would not be cheap for
I I
him. How could he have the money to get a new passport with a
different identity from his previous one, which is subject of
J J
the deportation order? The defendant was deported in February
K
2012 and returned to Hong Kong in June 2014 with a different K
passport. I could not speculate whether this defendant had used
L other means to come to Hong Kong. That also demonstrates how L
easy it was to circumvent the deportation order as the deportee
M could easily get another passport, even if it was a legal one, M
through different channel.
N N
12. Had the prosecution had evidence of using a false
O O
passport, heavier sentence is called for. It is a pity that the
P Indonesian government up to now has not responded to the inquiry P
made by the police as to the authenticity of the passport used
Q by the defendant on this occasion. Q
R R
13. In my view, the defendant came to Hong Kong, not for a
vacation, but with a clear intention to breach the deportation
S S
order and to commit crimes. He used a different identity to
T circumvent the deportation order. The defendant and his T
accomplice targeted the victim when the latter took cash from
U the bank. Eventually, the victim lost $100,000 in cash. The U
CRT32/30.9.2014/SC 4 DCCC 728/2014/Sentence
V V
A A
defendant passed the stolen property to his accomplice and hence
the money could not be recovered.
B B
C 14. The defendant was not the first offender of this theft C
charge. I considered the authorities of HKSAR v Ngo Van Huy
D [2005] 2 HKLRD 1 and HKSAR v Wong Kang Sun [2014] 1 HKLRD 622. D
Taking into account of those aggravating features, I used
E E
27 months as a starting point. Given the defendant’s plea, I
reduce the sentence for Charge 2 to 18 months’ imprisonment.
F F
G 15. As regards the immigration-related offences, for G
Charge 1, I accept that the prosecution has to rely on the
H defendant’s admission as the Indonesian government does not H
offer any real assistance in this matter. I would use the
I I
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
J J
deportation order, the defendant used a passport of different
K
identity with clear intention to commit a breach. He came to K
Hong Kong either to find a job, as said in the mitigation, or to
L commit a crime, as evidenced in the present offence. I adopt a L
starting point of 27 months. I reduce the sentence to 18 months
M because of his plea. I am also lenient to the defendant and M
order that the sentence of these two immigration offences to be
N N
run concurrently.
O O
16. However, the theft offence carries a different nature
P of criminality and the defendant was not acting alone. I P
consider the totality principle and order that the sentence
Q should run consecutively. Accordingly, I sentence the defendant Q
to a total term of 36 months’ imprisonment.
R R
S S
T T
(Stanley Chan)
District Judge
U U
CRT32/30.9.2014/SC 5 DCCC 728/2014/Sentence
V V