HKSAR v. MASRI CANDRA (also known as TRI WAHYU, WAHYU TRI, JONED ASRI AND ASRI JONED)AND ANOTHER
區域法院（刑事）Deputy District Judge Wong Sze Lai, Lily20/2/2017
DCCC674/2016
A A
B B
DCCC 674/2016
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 674 OF 2016 E
F F
-----------------------------
G HKSAR G
v
H H
MASRI CANDRA (also known as
TRI WAHYU, Wahyu TRI,
I I
JONED ASRI and Asri JONED) (D1)
J YUDHO AKBAR (D2) J
-----------------------------
K K
L Before: Deputy District Judge Wong Sze Lai, Lily L
Date: 21 February 2017 at 2:37 pm
M M
Present: Mr Wilson Choi, PP of the Department of Justice, for HKSAR
N Miss Li Lai Shan, Liza, instructed by Ho & Ip (assigned by N
DLA), for the 1st defendant
O O
Mr Anthony James Sherry, instructed by Jal N Karbhari & Co
P (assigned by DLA), for the 2nd defendant P
Offence: [1] Theft（盜竊罪）
Q Q
[2] & [3] Breach of deportation order（違反遞解離境令）
R R
S
-------------------------------------- S
REASONS FOR SENTENCE
T T
--------------------------------------
U U
V V
-2-
A A
B B
C Charge C
D D
1. The 1st and 2nd defendants were jointly charged with an
E offence of theft, contrary to section 9 of the Theft Ordinance, Cap 210. E
F F
2. The particulars of the offence show that both defendants, on
G 11 April 2016, outside No 285 Des Voeux Road, Central, Sheung Wan, G
together with two persons unknown, stole cash of HK$50,000, property
H H
belonging to Kuei Lin. This is Charge 1.
I I
3. The 1st defendant was further charged with two offences of
J J
breach of deportation order, contrary to section 43(1)(a) of the Immigration
K Ordinance, Cap 115. These are Charges 2 and 3. K
L L
4. Both defendants pleaded guilty to all the charges they face.
M M
Facts: Charge 1
N N
O 5. On 11 April 2016 at around 1410 hours, Mr Kuei, aged 66, O
victim of Charge 1, PW1, withdrew HK$50,000 from a bank in Sheung
P P
Wan. He placed the money into the unzipped right pocket of his jacket.
Q When he reached the location described in the charge, he was suddenly Q
bumped by a male on his right hand side from the back. The male walked
R R
away without looking back. When PW1 arrived at the money exchange
S shop nearby, he found the money in the pocket missing. S
T T
U U
V V
-3-
A A
B B
6. On 20 May 2016, both defendants were arrested. Under
C caution for loitering offence by PC10513, D1 said, “Sorry, Sir.” The police C
officer asked, “Why?” He then replied, “We stole money at a money
D D
exchange shop last month in Central.”
E E
7. On 21 May 2016, D1 admitted, inter alia, in the cautioned
F F
video interviews conducted by the police that:-
G G
(a) he went to Hong Kong with D2 and two other persons,
H H
namely WP1 and WP2, from Indonesia on 8 April
I 2016; I
J J
(b) on 11 April, around 1410 hours, they were in Sheung
K Wan and saw an old man with money in his jacket; and K
L L
(c) WP1 suggested stealing the money, and arranged the
M role of each person. WP1 stole the money from PW1 M
while D1 and WP2 assisted by blocking others’ view.
N N
They then fled. WP1 gave him HK$12,000.
O O
8. In one of the cautioned video-recorded interviews, D2
P P
admitted having come to Hong Kong together with D1 in March or April
Q in 2016. Having watched D1’s recorded interview alleging that D2 knew Q
the pickpocketing plan prior to the commission of the offence, D2 stated
R R
that D1 had told the truth. D2 further said that WP1, WP2 and D1 followed
S the victim, but he fell behind. Later, WP2 gave him $12,000. It is noted S
that in a subsequent interview, he said he knew nothing about the
T T
pickpocketing plan.
U U
V V
-4-
A A
B B
C Charges 2 and 3 C
D D
9. Fingerprint comparisons revealed that he was the subject of a
E deportation order issued against him on 5 May 2010. Travel index check E
record revealed that he used a passport under the name Masri Candra to
F F
enter Hong Kong on 7 April 2016 and departed on 23 April 2016 (2nd
G charge) and on 12 May 2016 (3rd charge) when the deportation order G
against him was still in force. Under caution, he admitted using other
H H
identities to enter Hong Kong, and he knew he was the subject of the
I deportation order issued against him on 5 May 2010. I
J J
Previous convictions
K K
10. For D1, he has a total of 11 previous convictions, 10 of which
L L
relate to the offence of breach of deportation order, and the remaining one
M relates to an offence of theft, for which he was sentenced in 2010 to 5 M
months’ imprisonment.
N N
O 11. D2 is of clear record. O
P P
12. Both counsel for D1 and D2 agreed with the contents of the
Q antecedents statements. Q
R R
Mitigation - D1
S S
13. Miss Li, counsel for D1, submitted that D1, aged 56 and
T T
Indonesian, is married with two adult sons. He engaged in selling second-
U U
V V
-5-
A A
B B
hand mobile phones or other things, earning about the equivalent to
C HK$500 to 1,000 per month. On the offence date it was WP1 and WP2 C
who told him that there was money in PW1’s pocket, and WP1 suggested
D D
to D1 blocking the views of others whilst he stole the money from PW1.
E E
14. Miss Li referred this court to HKSAR v Ganbold Munkh
F F
Erdene CACC 315/2014 and pointed out that the tariff for pickpocketing
G offence was 12 to 15 months. G
H H
15. In the present case, D1 acted in concert with others to commit
I theft, and this was, as she rightly said, an aggravating feature for sentencing I
purpose. She then submitted that although D1 committed the
J J
pickpocketing offence four days after he arrived in Hong Kong, he came
K here not to steal. He was here to buy second-hand mobile phones for sale K
in his home country. Besides, there was nothing to suggest the offence
L L
location was a busy street as described in the aforesaid authority.
M M
16. Miss Li emphasised that D1 had, of his own volition,
N N
volunteered information to the police. Had he not made confessions to the
O 1st offence, he would not have been arrested. This court should therefore O
take that into account when sentencing D1.
P P
Q D2 Q
R R
17. In both of his written and oral submissions, Mr Sherry,
S counsel for D2, submitted that D2, aged 36 and Indonesian, is married with S
two daughters aged 4 and 5. He worked as a taxi driver and a hawker in
T T
his home country.
U U
V V
-6-
A A
B B
C 18. A letter written by D2 in his language dated 5 June 2016 was C
read out. The date of the letter seemed to be wrong, as he mentioned some
D D
events after that date. In any event, he indicated that he intended to plead
E guilty when he was brought to appear in the Magistrates’ Court in August E
and in the plea day hearing in the District Court in September last year.
F F
G 19. In respect of the starting point for the pickpocketing offence, G
Mr Sherry referred to HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 and
H H
suggested this court adopt a starting point of 12 months. He described that
I the pickpocketing offence was just an opportunistic act prompted by WP1 I
which D2 agreed to follow. As revealed in the Summary of Facts, it was
J J
WP1 who stole the money, and D2 simply followed and fell behind.
K Mr Sherry also said that the offence did not take place in a crowded and K
confined area and D2 was not part of an organised group or ring of thieves.
L L
What he meant was simply that there was no aggravating factor in this case
M which could justify the court to adopt a higher starting point for sentence. M
On the contrary, he emphasised that the court should, apart from giving a
N N
one-third discount of sentence for D2’s guilty plea, give further discount
O because D2 had volunteered information to the police leading to his arrest O
for the pickpocketing offence.
P P
Q 20. He relied on HKSAR v Yuen Kwok Kee CACC 336/2005, in Q
particular paragraphs 19 to 21: “that where there was evidence of great
R R
remorse on the defendant’s part such as a conscience stricken defendant
S voluntarily surrendering to the authority or a defendant pleading guilty S
despite the total lack of evidence against him, a further discount could be
T T
given …... such further discount is an exception rather than the rule.”
U U
V V
-7-
A A
B B
C Reasons for sentence C
D D
21. In passing sentence, I have carefully considered everything
E said by both counsel and everything written, including the letters of D1 and E
D2.
F F
G Charge 1 G
H H
22. Charge 1 is a pickpocketing offence. The Court of Appeal in
I HKSAR v Ngo Van Huy had laid down sentencing guidelines for this I
offence. The court at paragraph 9 said:
J J
K “(2) The guideline sentence of 12 to 15 months after trial is K
therefore appropriate for a first time offender. This is an
immediate custodial sentence, not a suspended one.
L L
(3) Of course, account must be taken for the existence of any
M aggravating or particular mitigating features before the court. M
(4) Aggravating features include:
N N
(c) If the accused commits the offence in
conjunction with another, the sentence should be
O O
higher.”
P P
23. In light of the said authority, for Charge 1 I shall adopt a
Q starting point of 12 months’ imprisonment for both defendants. However, Q
the matter does not stop here. Obviously there was an aggravating feature
R R
in this case.
S S
T T
U U
V V
-8-
A A
B B
Aggravating factors (Joint Enterprise)
C C
24. Both defendants admitted in the Summary of Facts at
D D
paragraph 7 that D1, D2, WP1 and WP2 acted as a joint enterprise and stole
E $50,000 from PW1. D1 admitted that he knew the pickpocketing plan and E
he assisted WP1 by blocking the views of others. The assistance he offered
F F
would have facilitated the act of stealing not to be easily detected by the
G passers-by. G
H H
25. For D2, Mr Sherry said that it was WP1 who stole the money.
I D2’s participation was minimal, as he kept a distance from WP1 and I
simply followed him, and at one stage he fell behind.
J J
K 26. Although the act of stealing was committed by WP1, D2, as K
he had admitted in his cautioned interview, knew the pickpocketing plan,
L L
and apparently he agreed to join in, so he followed WP1 and others who
M were at that time following PW1. After the stealing, he was rewarded M
$12,000, which was the same amount as that received by D1 and WP2.
N N
O 27. I accept that the theft was not committed in a very O
sophisticated manner. Still, it was planned and premeditated. Doubtless
P P
to say there was a discussion among the four of them as to from whom to
Q steal, how to steal, what to steal, what role each should play in the theft, Q
and how much each should get.
R R
S S
T T
U U
V V
-9-
A A
B B
28. It was an act of stealing committed by four persons, and two
C of them are still at large. This justifies the court to adopt a higher starting C
point for sentence. For this I shall adjust the starting point upwards to 18
D D
months’ imprisonment for Charge 1 for both defendants.
E E
29. There are two things I want to say. First, I note that both
F F
defendants committed the theft offence four days after their arrival in Hong
G Kong. There is, however, insufficient evidence to establish that they came G
here in order to steal, albeit it is reasonable to have such suspicion.
H H
Secondly, the offence seems to have been committed not in a busy street
I or some well-known places frequented by tourists. As such, I will not I
further enhance the starting point.
J J
K Mitigating factors (Guilty Pleas) K
L L
30. According to the records, this case was first brought to the
M District Court on 19 August 2016. It was adjourned upon an application M
by the defence. It was heard again on 2 September 2016 at 11 am for
N N
mention.
O O
31. In this hearing, D1 indicated his guilty pleas to Charges 2 and
P P
3 but not guilty plea to Charge 1. D2 also indicated his not guilty plea to
Q Charge 1. Q
R R
32. A trial date was then fixed. It was after the fixing of the trial
S date that this court received a letter from D1’s counsel in November 2016 S
and another letter from D2’s solicitors in January 2017 that both defendants
T T
intended to plead guilty to Charge 1.
U U
V V
- 10 -
A A
B B
C 33. Having heard what counsel has said, and bearing in mind that C
the case was heard on the same day the Court of Appeal had delivered its
D D
judgment, HKSAR v Ngo Van Nam CACC 327/2015, and that the
E defendants had written to this court indicating their pleas of guilty some E
time ago before the trial, I am prepared to give the defendants the full one-
F F
third discount for sentence.
G G
34. Upon their pleas of guilty to Charge 1, the sentence for each
H H
defendant is reduced to 12 months’ imprisonment.
I I
(Voluntary Confessions)
J J
K 35. There is another mitigating factor in this case. Without the K
voluntary confessions of both defendants, the police would not have been
L L
aware of their involvement in the theft offence. In HKSAR v Hui Chi Tong
M CACC 14/2007, the Court of Appeal said at paragraph 22:- M
N N
“But for the voluntary confession, the applicant would not have
been found guilty of the 1st charge. Such voluntary admission,
O coupled with a plea later, showed genuine remorse. It is in the O
public interest to encourage an offender to own up to his misdeed
P and to face the consequence. The most effective way of giving P
encouragement is to give a greater than normal discount upon a
plea. In all the circumstances of this case, we are of the view
Q that a further discount of 2 months is appropriate.” Q
R
36. In this case, for the defendants’ “owning-up” to their offences, R
S
I will further reduce the sentence by 2 months. S
T T
U U
V V
- 11 -
A A
B B
37. In respect of Charge 1, D1 and D2, you are each sentenced to
C 10 months’ imprisonment. C
D D
Charges 2 and 3
E E
38. The travel index check record shows that the defendants came
F F
to Hong Kong on 7 April 2016 and 12 May 2016. It appears that D1 came
G in and out as freely as he wished by using a passport under the name of G
Masri Candra, different from the names he had previously used.
H H
I 39. I note in the criminal record of D1 that he appealed against I
the sentences imposed on him in August 2012 in DCCC 578/2012. In that
J J
case, he was charged with 10 breaches of deportation order - that is, 5th to
K 14th charges - and he received a total of 59 months’ imprisonment for the K
said charges. He appealed against that sentence.
L L
M 40. The Court of Appeal in HKSAR v Joned Asri, also known as M
Tri Wahyu, and we now know that he is also known as Masri Candra,
N N
CACC 345/2012, adopted a starting point of 42 months in respect of his
O 9th to 14th charges. The Court of Appeal also said at paragraph 16:- O
P P
“What is not permissible in the case of a repeat or even persistent
offender is to keep enhancing the starting point for each repeat
Q offence which is not worst of its kind until one reaches the Q
maximum. This would be wrong in principle because apart from
R the fact that it is a repeat offence, the nature and criminality of R
the offence repeated remains the same.”
S S
T T
U U
V V
- 12 -
A A
B B
And in paragraph 19:-
C C
“On the facts of the present case, given the nature and
D seriousness of the offence and the criminality involved, we take D
the view that the enhanced starting points ought to have flattened
out after the fifth breach - that is, 42 months - which was the
E enhanced starting point adopted by this court differently E
constituted in Pham Van Hung in respect of a fifth breach.”
F F
41. In light of what the Court of Appeal has said in that case, in
G G
which D1 was the appellant, I shall adopt a starting point of 42 months’
H imprisonment for each of the offences of breach of deportation order. H
I I
42. Upon the guilty pleas, the sentence of Charge 2 is reduced to
J 28 months’ imprisonment. Likewise, the sentence of Charge 3 is reduced J
to 28 months’ imprisonment.
K K
L Totality L
M M
43. What remains now is for me to consider the totality principle.
N The two offences of breach of deportation order are separate and distinct N
from the theft offence and for which consecutive sentences are appropriate.
O O
(See HKSAR v Tong Fuk Sing [1999] 3 HKLRD 710 and HKSAR v Wong
P Ting Wah CACC 153/1997.) P
Q Q
44. For Charges 2 and 3, given that the breaches were committed
R almost within a month, I order that the sentences should run concurrently R
with each other. However, they should run wholly consecutive to the
S S
sentence imposed on Charge 1, making a total of 38 months’
T imprisonment. T
U U
V V
- 13 -
A A
B B
45. D1, you are sentenced to 38 months’ imprisonment.
C C
46. D2, you are sentenced to 10 months’ imprisonment.
D D
E E
F F
G ( Wong Sze Lai, Lily ) G
Deputy District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 674/2016
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 674 OF 2016 E
F F
-----------------------------
G HKSAR G
v
H H
MASRI CANDRA (also known as
TRI WAHYU, Wahyu TRI,
I I
JONED ASRI and Asri JONED) (D1)
J YUDHO AKBAR (D2) J
-----------------------------
K K
L Before: Deputy District Judge Wong Sze Lai, Lily L
Date: 21 February 2017 at 2:37 pm
M M
Present: Mr Wilson Choi, PP of the Department of Justice, for HKSAR
N Miss Li Lai Shan, Liza, instructed by Ho & Ip (assigned by N
DLA), for the 1st defendant
O O
Mr Anthony James Sherry, instructed by Jal N Karbhari & Co
P (assigned by DLA), for the 2nd defendant P
Offence: [1] Theft（盜竊罪）
Q Q
[2] & [3] Breach of deportation order（違反遞解離境令）
R R
S
-------------------------------------- S
REASONS FOR SENTENCE
T T
--------------------------------------
U U
V V
-2-
A A
B B
C Charge C
D D
1. The 1st and 2nd defendants were jointly charged with an
E offence of theft, contrary to section 9 of the Theft Ordinance, Cap 210. E
F F
2. The particulars of the offence show that both defendants, on
G 11 April 2016, outside No 285 Des Voeux Road, Central, Sheung Wan, G
together with two persons unknown, stole cash of HK$50,000, property
H H
belonging to Kuei Lin. This is Charge 1.
I I
3. The 1st defendant was further charged with two offences of
J J
breach of deportation order, contrary to section 43(1)(a) of the Immigration
K Ordinance, Cap 115. These are Charges 2 and 3. K
L L
4. Both defendants pleaded guilty to all the charges they face.
M M
Facts: Charge 1
N N
O 5. On 11 April 2016 at around 1410 hours, Mr Kuei, aged 66, O
victim of Charge 1, PW1, withdrew HK$50,000 from a bank in Sheung
P P
Wan. He placed the money into the unzipped right pocket of his jacket.
Q When he reached the location described in the charge, he was suddenly Q
bumped by a male on his right hand side from the back. The male walked
R R
away without looking back. When PW1 arrived at the money exchange
S shop nearby, he found the money in the pocket missing. S
T T
U U
V V
-3-
A A
B B
6. On 20 May 2016, both defendants were arrested. Under
C caution for loitering offence by PC10513, D1 said, “Sorry, Sir.” The police C
officer asked, “Why?” He then replied, “We stole money at a money
D D
exchange shop last month in Central.”
E E
7. On 21 May 2016, D1 admitted, inter alia, in the cautioned
F F
video interviews conducted by the police that:-
G G
(a) he went to Hong Kong with D2 and two other persons,
H H
namely WP1 and WP2, from Indonesia on 8 April
I 2016; I
J J
(b) on 11 April, around 1410 hours, they were in Sheung
K Wan and saw an old man with money in his jacket; and K
L L
(c) WP1 suggested stealing the money, and arranged the
M role of each person. WP1 stole the money from PW1 M
while D1 and WP2 assisted by blocking others’ view.
N N
They then fled. WP1 gave him HK$12,000.
O O
8. In one of the cautioned video-recorded interviews, D2
P P
admitted having come to Hong Kong together with D1 in March or April
Q in 2016. Having watched D1’s recorded interview alleging that D2 knew Q
the pickpocketing plan prior to the commission of the offence, D2 stated
R R
that D1 had told the truth. D2 further said that WP1, WP2 and D1 followed
S the victim, but he fell behind. Later, WP2 gave him $12,000. It is noted S
that in a subsequent interview, he said he knew nothing about the
T T
pickpocketing plan.
U U
V V
-4-
A A
B B
C Charges 2 and 3 C
D D
9. Fingerprint comparisons revealed that he was the subject of a
E deportation order issued against him on 5 May 2010. Travel index check E
record revealed that he used a passport under the name Masri Candra to
F F
enter Hong Kong on 7 April 2016 and departed on 23 April 2016 (2nd
G charge) and on 12 May 2016 (3rd charge) when the deportation order G
against him was still in force. Under caution, he admitted using other
H H
identities to enter Hong Kong, and he knew he was the subject of the
I deportation order issued against him on 5 May 2010. I
J J
Previous convictions
K K
10. For D1, he has a total of 11 previous convictions, 10 of which
L L
relate to the offence of breach of deportation order, and the remaining one
M relates to an offence of theft, for which he was sentenced in 2010 to 5 M
months’ imprisonment.
N N
O 11. D2 is of clear record. O
P P
12. Both counsel for D1 and D2 agreed with the contents of the
Q antecedents statements. Q
R R
Mitigation - D1
S S
13. Miss Li, counsel for D1, submitted that D1, aged 56 and
T T
Indonesian, is married with two adult sons. He engaged in selling second-
U U
V V
-5-
A A
B B
hand mobile phones or other things, earning about the equivalent to
C HK$500 to 1,000 per month. On the offence date it was WP1 and WP2 C
who told him that there was money in PW1’s pocket, and WP1 suggested
D D
to D1 blocking the views of others whilst he stole the money from PW1.
E E
14. Miss Li referred this court to HKSAR v Ganbold Munkh
F F
Erdene CACC 315/2014 and pointed out that the tariff for pickpocketing
G offence was 12 to 15 months. G
H H
15. In the present case, D1 acted in concert with others to commit
I theft, and this was, as she rightly said, an aggravating feature for sentencing I
purpose. She then submitted that although D1 committed the
J J
pickpocketing offence four days after he arrived in Hong Kong, he came
K here not to steal. He was here to buy second-hand mobile phones for sale K
in his home country. Besides, there was nothing to suggest the offence
L L
location was a busy street as described in the aforesaid authority.
M M
16. Miss Li emphasised that D1 had, of his own volition,
N N
volunteered information to the police. Had he not made confessions to the
O 1st offence, he would not have been arrested. This court should therefore O
take that into account when sentencing D1.
P P
Q D2 Q
R R
17. In both of his written and oral submissions, Mr Sherry,
S counsel for D2, submitted that D2, aged 36 and Indonesian, is married with S
two daughters aged 4 and 5. He worked as a taxi driver and a hawker in
T T
his home country.
U U
V V
-6-
A A
B B
C 18. A letter written by D2 in his language dated 5 June 2016 was C
read out. The date of the letter seemed to be wrong, as he mentioned some
D D
events after that date. In any event, he indicated that he intended to plead
E guilty when he was brought to appear in the Magistrates’ Court in August E
and in the plea day hearing in the District Court in September last year.
F F
G 19. In respect of the starting point for the pickpocketing offence, G
Mr Sherry referred to HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 and
H H
suggested this court adopt a starting point of 12 months. He described that
I the pickpocketing offence was just an opportunistic act prompted by WP1 I
which D2 agreed to follow. As revealed in the Summary of Facts, it was
J J
WP1 who stole the money, and D2 simply followed and fell behind.
K Mr Sherry also said that the offence did not take place in a crowded and K
confined area and D2 was not part of an organised group or ring of thieves.
L L
What he meant was simply that there was no aggravating factor in this case
M which could justify the court to adopt a higher starting point for sentence. M
On the contrary, he emphasised that the court should, apart from giving a
N N
one-third discount of sentence for D2’s guilty plea, give further discount
O because D2 had volunteered information to the police leading to his arrest O
for the pickpocketing offence.
P P
Q 20. He relied on HKSAR v Yuen Kwok Kee CACC 336/2005, in Q
particular paragraphs 19 to 21: “that where there was evidence of great
R R
remorse on the defendant’s part such as a conscience stricken defendant
S voluntarily surrendering to the authority or a defendant pleading guilty S
despite the total lack of evidence against him, a further discount could be
T T
given …... such further discount is an exception rather than the rule.”
U U
V V
-7-
A A
B B
C Reasons for sentence C
D D
21. In passing sentence, I have carefully considered everything
E said by both counsel and everything written, including the letters of D1 and E
D2.
F F
G Charge 1 G
H H
22. Charge 1 is a pickpocketing offence. The Court of Appeal in
I HKSAR v Ngo Van Huy had laid down sentencing guidelines for this I
offence. The court at paragraph 9 said:
J J
K “(2) The guideline sentence of 12 to 15 months after trial is K
therefore appropriate for a first time offender. This is an
immediate custodial sentence, not a suspended one.
L L
(3) Of course, account must be taken for the existence of any
M aggravating or particular mitigating features before the court. M
(4) Aggravating features include:
N N
(c) If the accused commits the offence in
conjunction with another, the sentence should be
O O
higher.”
P P
23. In light of the said authority, for Charge 1 I shall adopt a
Q starting point of 12 months’ imprisonment for both defendants. However, Q
the matter does not stop here. Obviously there was an aggravating feature
R R
in this case.
S S
T T
U U
V V
-8-
A A
B B
Aggravating factors (Joint Enterprise)
C C
24. Both defendants admitted in the Summary of Facts at
D D
paragraph 7 that D1, D2, WP1 and WP2 acted as a joint enterprise and stole
E $50,000 from PW1. D1 admitted that he knew the pickpocketing plan and E
he assisted WP1 by blocking the views of others. The assistance he offered
F F
would have facilitated the act of stealing not to be easily detected by the
G passers-by. G
H H
25. For D2, Mr Sherry said that it was WP1 who stole the money.
I D2’s participation was minimal, as he kept a distance from WP1 and I
simply followed him, and at one stage he fell behind.
J J
K 26. Although the act of stealing was committed by WP1, D2, as K
he had admitted in his cautioned interview, knew the pickpocketing plan,
L L
and apparently he agreed to join in, so he followed WP1 and others who
M were at that time following PW1. After the stealing, he was rewarded M
$12,000, which was the same amount as that received by D1 and WP2.
N N
O 27. I accept that the theft was not committed in a very O
sophisticated manner. Still, it was planned and premeditated. Doubtless
P P
to say there was a discussion among the four of them as to from whom to
Q steal, how to steal, what to steal, what role each should play in the theft, Q
and how much each should get.
R R
S S
T T
U U
V V
-9-
A A
B B
28. It was an act of stealing committed by four persons, and two
C of them are still at large. This justifies the court to adopt a higher starting C
point for sentence. For this I shall adjust the starting point upwards to 18
D D
months’ imprisonment for Charge 1 for both defendants.
E E
29. There are two things I want to say. First, I note that both
F F
defendants committed the theft offence four days after their arrival in Hong
G Kong. There is, however, insufficient evidence to establish that they came G
here in order to steal, albeit it is reasonable to have such suspicion.
H H
Secondly, the offence seems to have been committed not in a busy street
I or some well-known places frequented by tourists. As such, I will not I
further enhance the starting point.
J J
K Mitigating factors (Guilty Pleas) K
L L
30. According to the records, this case was first brought to the
M District Court on 19 August 2016. It was adjourned upon an application M
by the defence. It was heard again on 2 September 2016 at 11 am for
N N
mention.
O O
31. In this hearing, D1 indicated his guilty pleas to Charges 2 and
P P
3 but not guilty plea to Charge 1. D2 also indicated his not guilty plea to
Q Charge 1. Q
R R
32. A trial date was then fixed. It was after the fixing of the trial
S date that this court received a letter from D1’s counsel in November 2016 S
and another letter from D2’s solicitors in January 2017 that both defendants
T T
intended to plead guilty to Charge 1.
U U
V V
- 10 -
A A
B B
C 33. Having heard what counsel has said, and bearing in mind that C
the case was heard on the same day the Court of Appeal had delivered its
D D
judgment, HKSAR v Ngo Van Nam CACC 327/2015, and that the
E defendants had written to this court indicating their pleas of guilty some E
time ago before the trial, I am prepared to give the defendants the full one-
F F
third discount for sentence.
G G
34. Upon their pleas of guilty to Charge 1, the sentence for each
H H
defendant is reduced to 12 months’ imprisonment.
I I
(Voluntary Confessions)
J J
K 35. There is another mitigating factor in this case. Without the K
voluntary confessions of both defendants, the police would not have been
L L
aware of their involvement in the theft offence. In HKSAR v Hui Chi Tong
M CACC 14/2007, the Court of Appeal said at paragraph 22:- M
N N
“But for the voluntary confession, the applicant would not have
been found guilty of the 1st charge. Such voluntary admission,
O coupled with a plea later, showed genuine remorse. It is in the O
public interest to encourage an offender to own up to his misdeed
P and to face the consequence. The most effective way of giving P
encouragement is to give a greater than normal discount upon a
plea. In all the circumstances of this case, we are of the view
Q that a further discount of 2 months is appropriate.” Q
R
36. In this case, for the defendants’ “owning-up” to their offences, R
S
I will further reduce the sentence by 2 months. S
T T
U U
V V
- 11 -
A A
B B
37. In respect of Charge 1, D1 and D2, you are each sentenced to
C 10 months’ imprisonment. C
D D
Charges 2 and 3
E E
38. The travel index check record shows that the defendants came
F F
to Hong Kong on 7 April 2016 and 12 May 2016. It appears that D1 came
G in and out as freely as he wished by using a passport under the name of G
Masri Candra, different from the names he had previously used.
H H
I 39. I note in the criminal record of D1 that he appealed against I
the sentences imposed on him in August 2012 in DCCC 578/2012. In that
J J
case, he was charged with 10 breaches of deportation order - that is, 5th to
K 14th charges - and he received a total of 59 months’ imprisonment for the K
said charges. He appealed against that sentence.
L L
M 40. The Court of Appeal in HKSAR v Joned Asri, also known as M
Tri Wahyu, and we now know that he is also known as Masri Candra,
N N
CACC 345/2012, adopted a starting point of 42 months in respect of his
O 9th to 14th charges. The Court of Appeal also said at paragraph 16:- O
P P
“What is not permissible in the case of a repeat or even persistent
offender is to keep enhancing the starting point for each repeat
Q offence which is not worst of its kind until one reaches the Q
maximum. This would be wrong in principle because apart from
R the fact that it is a repeat offence, the nature and criminality of R
the offence repeated remains the same.”
S S
T T
U U
V V
- 12 -
A A
B B
And in paragraph 19:-
C C
“On the facts of the present case, given the nature and
D seriousness of the offence and the criminality involved, we take D
the view that the enhanced starting points ought to have flattened
out after the fifth breach - that is, 42 months - which was the
E enhanced starting point adopted by this court differently E
constituted in Pham Van Hung in respect of a fifth breach.”
F F
41. In light of what the Court of Appeal has said in that case, in
G G
which D1 was the appellant, I shall adopt a starting point of 42 months’
H imprisonment for each of the offences of breach of deportation order. H
I I
42. Upon the guilty pleas, the sentence of Charge 2 is reduced to
J 28 months’ imprisonment. Likewise, the sentence of Charge 3 is reduced J
to 28 months’ imprisonment.
K K
L Totality L
M M
43. What remains now is for me to consider the totality principle.
N The two offences of breach of deportation order are separate and distinct N
from the theft offence and for which consecutive sentences are appropriate.
O O
(See HKSAR v Tong Fuk Sing [1999] 3 HKLRD 710 and HKSAR v Wong
P Ting Wah CACC 153/1997.) P
Q Q
44. For Charges 2 and 3, given that the breaches were committed
R almost within a month, I order that the sentences should run concurrently R
with each other. However, they should run wholly consecutive to the
S S
sentence imposed on Charge 1, making a total of 38 months’
T imprisonment. T
U U
V V
- 13 -
A A
B B
45. D1, you are sentenced to 38 months’ imprisonment.
C C
46. D2, you are sentenced to 10 months’ imprisonment.
D D
E E
F F
G ( Wong Sze Lai, Lily ) G
Deputy District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
DCCC674/2016 HKSAR v. MASRI CANDRA (also known as TRI WAHYU, WAHYU TRI, JONED ASRI AND ASRI JONED)AND ANOTHER - LawHero