A A
B
DCCC 711/2016 B
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL ACTION NO 711 OF 2016 E
F F
---------------------
G HKSAR G
v
H H
PURNAMA SETIAWAN (also known as
ANDRI MARDANI and MARDANI ANDRI) (D1)
I I
MAHUMD KARIM (also known as PURBA JAYA,
J JAYA PURBA and PURBA JAYA) (D2) J
K ERIKA HARI (D3) K
---------------------
L L
M Before: Deputy District Judge Winnie Lau M
Date: 7 March 2017
N N
Present: Mr Leslie Parry, Counsel on Fiat, for HKSAR/Director of
O Public Prosecution O
Mr Mark Richard Charlton Sutherland, instructed by Massie
P P
& Clement, assigned by the Director of Legal Aid, for the 1st
Q defendant Q
Mr Hanif Mohamed Mughal, instructed by Tsang Chan &
R R
Woo, assigned by the Director of Legal Aid, for the 2 nd
S defendant S
Mr Leung Chun Keung, instructed by Tangs, assigned by the
T T
Director of Legal Aid, for the 3rd defendant
U U
V V
-2-
A A
B B
C Offences: [1] Attempted theft（企圖盜竊罪）- D1 to D3 C
[2] Breach of deportation order（違反遞解離境令） - D1
D D
[3] Breach of deportation order （違反遞解離境令） - D2
E E
[4] Using a false travel document for the purpose of Part II of
F
the Immigration Ordinance（為施行《入境條例》第 II 部而 F
使用虛假的旅行證件）- D1
G G
[5] Making a false representation to an Immigration Officer
H or Immigration Assistant（向入境事務主任或入境事務助理 H
I
員作出虛假的申述） - D2 I
J J
--------------------------------------
K REASONS FOR SENTENCE K
--------------------------------------
L L
M 1. All three defendants pleaded guilty to one joint count of M
attempted theft, contrary to section 9 of the Theft Ordinance, Cap 210
N N
(Charge 1). D2 and D3 also pleaded guilty to one count of breach of
O deportation order, contrary to section 43(1)(a) of the Immigration O
Ordinance, Cap 115 respectively (Charge 2 and Charge 3). Charge 4
P P
against D2 and Charge 5 against D3 were ordered to be kept on court file
Q and not to be proceeded with without the leave of the court. Q
R R
S S
T T
U U
V V
-3-
A A
B B
FACTS
C C
Charge 1
D D
E 2. On 3 June 2016, the police saw the three defendants acting E
suspiciously. At around 3:46pm on the same day, PC 5317 saw them
F F
observing people who were making withdrawals at the counters inside a
G Hong Kong & Shanghai Banking Corporation situated at 82 Nathan Road, G
Tsim Sha Tsui, Kowloon (“the Bank”). D1 and D2 split up with D3 and
H H
left the Bank, leaving D3 behind. D1 and D2 then followed closely behind
I two unknown males (“T1” and “T2”). I
J J
3. At around 3:48 pm, at the pedestrian crossing waiting area at
K Nathan Road near Humphrey’s Avenue, PC 5317 saw D1, covered by D2, K
with his left hand supporting a sling bag carried by T2. D1 also held the
L L
zipper of this bag with his right hand trying to unzip it, but was
M unsuccessful. M
N N
4. D1 and D2 followed T1 and T2 across the road towards
O Carnarvon Road when the crossing light signal changed to green and O
continued to follow them closely. D2 kept looking back in the direction he
P P
had come.
Q Q
5. At around 3:50 pm, at Humphrey’s Avenue, D3 passed by
R R
PC 5317 to catch up and join D1 and D2. D3 opened up an umbrella whilst
S they spoke to each other. All three defendants then walked in a line with S
D1 at the front, D3 in the middle and D2 at the rear. Each of them was
T T
about a body length apart.
U U
V V
-4-
A A
B B
C 6. Meanwhile, at Nathan Road near Carnarvon Road, WPC 958 C
saw three defendants standing closely against T2. D2 held the sling bag
D D
carried by T2 with his left hand and made some movement with his right
E hand. T2 suddenly pulled his sling bag from his side to his front. At this E
stage, all three defendants slowed their pace and talked to each other. D3
F F
then handed the umbrella to D2. The three defendants continued to follow
G T1 and T2 from an approximate distance of 2 metres. After a short time, G
D1 looked back talking to D2 and D3. The three defendants then suddenly
H H
walked quickly towards Mody Road. The police subsequently arrested the
I defendants. I
J J
7. D3 entered Hong Kong on 29 May 2016.
K K
Charge 2 against D1 and Charge 3 against D2
L L
M 8. D1 entered Hong Kong on 29 May 2016 via the Hong Kong M
International Airport on the strength of an Indonesian passport numbered
N N
B0285950 in the name of Purnama Setiawan with a photo of himself.
O O
9. D2 entered Hong Kong on 1 June 2016 via the Macau Ferry
P P
Terminal at 1:37 am on the strength of an Indonesian passport numbered
Q B1543049 in the name of Mahmud Karim with a photo of himself and an Q
indicated date of birth 30 August 1963.
R R
S 10. Fingerprints of both D1 and D2 were taken. Forensic S
examination and comparison of their fingerprints indicated that both
T T
defendants were subjects of the Deportation Orders as below:-
U U
V V
-5-
A A
B B
C (1) a deportation order, which is still in force, was issued C
against D1 on 22 May 2006 under the name of Andri
D D
Mardani, alias Mardani Andri, and stated that D1 was
E prohibited from being in Hong Kong at any time after E
the date of issue. He was served with a copy of the said
F F
order on 30 May 2006 and deported to Indonesia on the
G same day; G
H H
(2) a deportation order, which is still in force, was issued
I against D2 on 31 July 2007 under the name of Purba I
Jaya, alias Jaya Purba, and stated that D2 was
J J
prohibited from being in Hong Kong at any time after
K the date of issue. He was served with a copy of the said K
order on 7 August 2007 and deported to Indonesia on
L L
the same day. The immigration records at the date of
M the said order indicate his date of birth as 10 August M
1965.
N N
O MITIGATION O
P P
D1
Q Q
11. D1 has three previous convictions consisting of two offences
R R
of theft in 2005 and 2013, one of which related to pickpocketing, and one
S offence of breach of deportation/expulsion order in 2014. S
T T
U U
V V
-6-
A A
B B
12. D1, aged 32, is from a poor family in Indonesia and there are
C no government subsidies. He is of low education level as he left school at C
the age of 16. His father passed away. His mother, aged 55, is feeling
D D
unwell with a cyst in the womb. He also has a younger sister aged 15. D1
E was a divorcee but he has now remarried. He is the sole breadwinner of E
the family.
F F
G 13. Out of shame, he has not been able to tell his wife and family G
as to what had happened to him. He committed the present offences out of
H H
stupidity. It is submitted that there was nothing particularly serious about
I his breach of the deportation order. He is remorseful for what he did and I
will not come to Hong Kong again. He pleaded guilty at the first available
J J
opportunity.
K K
D2
L L
M 14. D2 has one previous conviction of theft in 2007. M
N N
15. D2, aged 51, is an Indonesian national. He is married with 2
O sons aged 19 and 17, both are students. He received education up to junior O
high school. He works as a rice farmer with an unstable income, which is
P P
dependent on the harvest. He also works as a part time taxi driver earning
Q about HK$1,800 to $3,600 per month. He is the main financial support of Q
the family.
R R
S 16. He also supports his mother, aged 93, who is quite ill and S
suffering from a number of old aged related medical ailments. He is afraid
T T
that he may not able to see his mother alive by the time he returns home.
U U
V V
-7-
A A
B B
C 17. He underestimated the legal consequences and, out of sheer C
stupidity, committed the present offences. He gave an early indication of
D D
guilty plea to Charge 3. His guilty pleas show his regret and remorse.
E E
18. He came to Hong Kong alone and wanted to source and buy
F F
some 2nd hand mobile phones here to resell in Indonesia. He met D1 and
G D3 in a restaurant in Causeway Bay. On 3 June 2016, the three of them G
went to Tsim Sha Tsui. D2 wanted to change some Hong Kong dollars at
H H
a HSBC bank. On leaving the bank and walking along Nathan Road, the
I plan was hatched. I
J J
D3
K K
19. D3 has a clear record.
L L
M 20. D3, aged 36, is now a divorcee. She has four sons aged M
between 3 and 16 and an adopted daughter aged 7. All children are
N N
dependent on her and, except the youngest son, are attending school. Her
O father passed away. She and her children live together with her mother and O
stepfather. The family is supported by her and her stepfather. She works
P P
as a sales lady earning about HK$500 per month whereas her stepfather
Q works as a driver. Q
R R
21. Her family is now relying on the support of her stepfather’s
S income and relatives. She is very concerned about her children and wishes S
to return home to take care of them as soon as possible.
T T
U U
V V
-8-
A A
B B
22. She came to Hong Kong as she wanted to make some money
C for her family. This was the first time she came to Hong Kong. She C
committed the present offence due to poverty. She deeply regrets her
D D
decision on coming to Hong Kong.
E E
23. She played a minor role and did not take part in the first
F F
attempt.
G G
24. Mitigation letters written by D1 and D3 were submitted to the
H H
court for consideration. The contents of the two letters basically confirm
I the mitigation advanced by their counsel. I
J J
25. Both counsel for D1 and D2 have also referred me to HKSAR
K v Ta Dinh Son also known as Bui Trong Khoai and Ngo Van Thanh, CACC K
348/2013, HKSAR v Ngo Van Huy, CACC107/2004 and HKSAR v
L L
Lacharon Wilson Fernandez and Another, DCCC 669/2016.
M M
SENTENCE
N N
O 26. I have carefully considered everything said by the defence O
counsel on behalf of each of the three defendants in mitigation.
P P
Q Charge 1 Q
R R
27. The Court of Appeal in Ngo Van Huy sets out a guideline of
S 12 to 15 months imprisonment after trial for a first offender of S
pickpocketing. The said starting point can be increased if there exist
T T
aggravating features which include: (i) the presence or use of a weapon; (ii)
U U
V V
-9-
A A
B B
the offence is committed in a place in which the public is at particular risk,
C such as crowded places like the MTR or the racecourse, crowded shopping C
areas where the pedestrian traffic is heavy; (iii) the accused commits the
D D
offence in conjunction with another. Where he is part of an organized and
E professional ring of thieves, a substantial increase in sentence may be E
called for; and (iv) the accused is a repeat offender or persistent offender.
F F
I am satisfied that no distinction is to be drawn by the fact that this was an
G attempt. An attempt to commit an offence carries the same punishment as G
if the offence was actually committed.
H H
I 28. In HKSAR v Xiao Ping & others, CACC 147/2012, three I
defendants were convicted of attempted theft. They attempted to steal from
J J
the carrier bag of a shopper inside a shop in Mongkok and were arrested
K nearby. They were first-time offenders. A starting point of 15 months’ K
imprisonment was considered appropriate. Although the operation was not
L L
well planned and the shopping area was not crowded at the time, there were
M aggravating facts, namely that they acted in concert and the offence took M
place in a well-known shopping area. After considering the aggravating
N N
factors, the Court of Appeal held that the starting point should be 21
O months. However, two months were reduced from the starting point on O
account of the defendants’ handicap.
P P
Q 29. In light of the above authority, I find that the appropriate Q
starting point for the present offence is 15 months’ imprisonment. I note
R R
that both D1 and D2 have previous convictions of theft and one of D1’s
S theft convictions involved pickpocketing. As there has been a lapse of S
some years between their last theft convictions and the present offence, I
T T
would not treat their previous theft convictions as aggravating factors.
U U
V V
- 10 -
A A
B B
C 30. I accept that, as submitted by the defence, no weapon was C
involved and the acts of the defendants could not be said to display a high
D D
level of organization or professionalism. I also note that D2 entered Hong
E Kong a few days after D1 and D3. As such, I cannot rule out the suggestion E
made by the defence that D2 happened to meet D1 and D3 in a restaurant
F F
in Causeway and the plan was hatched as they were leaving the bank and
G walking along Nathan Road. G
H H
31. Although there is no evidence as to whether or not the offence
I location was particularly crowded, I was told by the counsel for D1 that, I
according to the statement of one of main police officers involved in the
J J
present case, the place was described as “medium crowded”. In any event,
K Tsim Sha Tsui is undoubtedly a well-known tourist and shopping area. K
This offence was committed by more than one person and the facts
L L
admitted by the defendants clearly showed that they were acting in concert,
M ie, (i) one defendant was covering the other defendant whilst unzipping M
T2’s sling bag; (ii) three defendants were standing closely against T2 when
N N
one of them held T2’s sling bag with his left hand and made some
O movement with his right hand. When T2 pulled his sling bag from his side O
to his front, all three defendants slowed their pace and talked to each other.
P P
They then continued to follow both T1 and T2 from a distance and, after a
Q short time, one defendant looked back talking to the other two defendants. Q
By reason of these aggravating factors, I enhance the starting point by 6
R R
months to 21 months.
S S
T T
U U
V V
- 11 -
A A
B B
32. It was submitted that D3 played a minor role. She participated
C in this joint enterprise. She is, in my view, equally culpable as the other C
two defendants. Based on the roles they have played, I am satisfied that
D D
there is no distinction between their sentences.
E E
33. I am skeptical as to D2’s assertion regarding the poor health
F F
of his aged mother. If one is concerned about one’s parent, one should
G avoid getting involved in this sort of offences in the first place. I don’t G
consider this as a ground to reduce his sentence.
H H
I 34. Apart from the defendants’ guilty pleas, I don’t see any other I
mitigating factors justifying any further reduction in sentence. Giving full
J J
credit for their guilty pleas, I sentence each of them to 14 months’
K imprisonment. K
L L
Charge 2 and Charge 3
M M
35. In Ta Dinh Son, the Court of Appeal concluded that a starting
N N
point of 27 months imprisonment after trial is appropriate for a first offence
O of breach of deportation order. In HKSAR v Pham Van Tuan, CACC O
272/2010, the defendant pleaded guilty to one charge of unlawful
P P
remaining and one charge of breach of deportation order. It was his second
Q breach of the deportation order. For the breach of deportation order offence, Q
he was sentenced to 21 months’ imprisonment.
R R
S 36. As this was the second breach of the deportation order by D1, S
I therefore adopt a starting point of 31½ months’ imprisonment. Regarding
T T
U U
V V
- 12 -
A A
B B
D2, I note that this was his first breach and adopt a starting point of 27
C months’ imprisonment. C
D D
37. Apart from their guilty pleas, there exist no other mitigating
E factors. I sentence D1 to 21 months’ imprisonment for Charge 2 and D2 E
to 18 months’ imprisonment for Charge 3.
F F
G 38. The attempted theft offence and breach of deportation order G
offence are separate offences and different in nature. Bearing in mind the
H H
totality principle, I am satisfied that a total of 27 months’ imprisonment for
I D1 and a total of 24 months’ imprisonment for D2 would be appropriate. I
Hence I order as follows:-
J J
K D1 K
L L
Charge 1 - 14 months’ imprisonment
M Charge 2 - 21 months’ imprisonment M
N N
13 months of Charge 2 to run consecutively to Charge 1
O making a total of 27 months’ imprisonment O
P P
D2
Q Q
Charge 1 - 14 months’ imprisonment
R R
Charge 3 - 18 months’ imprisonment
S S
10 months of Charge 3 to run consecutively to Charge 1
T T
making a total of 24 months’ imprisonment
U U
V V
- 13 -
A A
B B
C D3 C
D D
Charge 1 - 14 months’ imprisonment
E E
F F
G G
( Winnie Lau )
H Deputy District Judge 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
DCCC 711/2016 B
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL ACTION NO 711 OF 2016 E
F F
---------------------
G HKSAR G
v
H H
PURNAMA SETIAWAN (also known as
ANDRI MARDANI and MARDANI ANDRI) (D1)
I I
MAHUMD KARIM (also known as PURBA JAYA,
J JAYA PURBA and PURBA JAYA) (D2) J
K ERIKA HARI (D3) K
---------------------
L L
M Before: Deputy District Judge Winnie Lau M
Date: 7 March 2017
N N
Present: Mr Leslie Parry, Counsel on Fiat, for HKSAR/Director of
O Public Prosecution O
Mr Mark Richard Charlton Sutherland, instructed by Massie
P P
& Clement, assigned by the Director of Legal Aid, for the 1st
Q defendant Q
Mr Hanif Mohamed Mughal, instructed by Tsang Chan &
R R
Woo, assigned by the Director of Legal Aid, for the 2 nd
S defendant S
Mr Leung Chun Keung, instructed by Tangs, assigned by the
T T
Director of Legal Aid, for the 3rd defendant
U U
V V
-2-
A A
B B
C Offences: [1] Attempted theft（企圖盜竊罪）- D1 to D3 C
[2] Breach of deportation order（違反遞解離境令） - D1
D D
[3] Breach of deportation order （違反遞解離境令） - D2
E E
[4] Using a false travel document for the purpose of Part II of
F
the Immigration Ordinance（為施行《入境條例》第 II 部而 F
使用虛假的旅行證件）- D1
G G
[5] Making a false representation to an Immigration Officer
H or Immigration Assistant（向入境事務主任或入境事務助理 H
I
員作出虛假的申述） - D2 I
J J
--------------------------------------
K REASONS FOR SENTENCE K
--------------------------------------
L L
M 1. All three defendants pleaded guilty to one joint count of M
attempted theft, contrary to section 9 of the Theft Ordinance, Cap 210
N N
(Charge 1). D2 and D3 also pleaded guilty to one count of breach of
O deportation order, contrary to section 43(1)(a) of the Immigration O
Ordinance, Cap 115 respectively (Charge 2 and Charge 3). Charge 4
P P
against D2 and Charge 5 against D3 were ordered to be kept on court file
Q and not to be proceeded with without the leave of the court. Q
R R
S S
T T
U U
V V
-3-
A A
B B
FACTS
C C
Charge 1
D D
E 2. On 3 June 2016, the police saw the three defendants acting E
suspiciously. At around 3:46pm on the same day, PC 5317 saw them
F F
observing people who were making withdrawals at the counters inside a
G Hong Kong & Shanghai Banking Corporation situated at 82 Nathan Road, G
Tsim Sha Tsui, Kowloon (“the Bank”). D1 and D2 split up with D3 and
H H
left the Bank, leaving D3 behind. D1 and D2 then followed closely behind
I two unknown males (“T1” and “T2”). I
J J
3. At around 3:48 pm, at the pedestrian crossing waiting area at
K Nathan Road near Humphrey’s Avenue, PC 5317 saw D1, covered by D2, K
with his left hand supporting a sling bag carried by T2. D1 also held the
L L
zipper of this bag with his right hand trying to unzip it, but was
M unsuccessful. M
N N
4. D1 and D2 followed T1 and T2 across the road towards
O Carnarvon Road when the crossing light signal changed to green and O
continued to follow them closely. D2 kept looking back in the direction he
P P
had come.
Q Q
5. At around 3:50 pm, at Humphrey’s Avenue, D3 passed by
R R
PC 5317 to catch up and join D1 and D2. D3 opened up an umbrella whilst
S they spoke to each other. All three defendants then walked in a line with S
D1 at the front, D3 in the middle and D2 at the rear. Each of them was
T T
about a body length apart.
U U
V V
-4-
A A
B B
C 6. Meanwhile, at Nathan Road near Carnarvon Road, WPC 958 C
saw three defendants standing closely against T2. D2 held the sling bag
D D
carried by T2 with his left hand and made some movement with his right
E hand. T2 suddenly pulled his sling bag from his side to his front. At this E
stage, all three defendants slowed their pace and talked to each other. D3
F F
then handed the umbrella to D2. The three defendants continued to follow
G T1 and T2 from an approximate distance of 2 metres. After a short time, G
D1 looked back talking to D2 and D3. The three defendants then suddenly
H H
walked quickly towards Mody Road. The police subsequently arrested the
I defendants. I
J J
7. D3 entered Hong Kong on 29 May 2016.
K K
Charge 2 against D1 and Charge 3 against D2
L L
M 8. D1 entered Hong Kong on 29 May 2016 via the Hong Kong M
International Airport on the strength of an Indonesian passport numbered
N N
B0285950 in the name of Purnama Setiawan with a photo of himself.
O O
9. D2 entered Hong Kong on 1 June 2016 via the Macau Ferry
P P
Terminal at 1:37 am on the strength of an Indonesian passport numbered
Q B1543049 in the name of Mahmud Karim with a photo of himself and an Q
indicated date of birth 30 August 1963.
R R
S 10. Fingerprints of both D1 and D2 were taken. Forensic S
examination and comparison of their fingerprints indicated that both
T T
defendants were subjects of the Deportation Orders as below:-
U U
V V
-5-
A A
B B
C (1) a deportation order, which is still in force, was issued C
against D1 on 22 May 2006 under the name of Andri
D D
Mardani, alias Mardani Andri, and stated that D1 was
E prohibited from being in Hong Kong at any time after E
the date of issue. He was served with a copy of the said
F F
order on 30 May 2006 and deported to Indonesia on the
G same day; G
H H
(2) a deportation order, which is still in force, was issued
I against D2 on 31 July 2007 under the name of Purba I
Jaya, alias Jaya Purba, and stated that D2 was
J J
prohibited from being in Hong Kong at any time after
K the date of issue. He was served with a copy of the said K
order on 7 August 2007 and deported to Indonesia on
L L
the same day. The immigration records at the date of
M the said order indicate his date of birth as 10 August M
1965.
N N
O MITIGATION O
P P
D1
Q Q
11. D1 has three previous convictions consisting of two offences
R R
of theft in 2005 and 2013, one of which related to pickpocketing, and one
S offence of breach of deportation/expulsion order in 2014. S
T T
U U
V V
-6-
A A
B B
12. D1, aged 32, is from a poor family in Indonesia and there are
C no government subsidies. He is of low education level as he left school at C
the age of 16. His father passed away. His mother, aged 55, is feeling
D D
unwell with a cyst in the womb. He also has a younger sister aged 15. D1
E was a divorcee but he has now remarried. He is the sole breadwinner of E
the family.
F F
G 13. Out of shame, he has not been able to tell his wife and family G
as to what had happened to him. He committed the present offences out of
H H
stupidity. It is submitted that there was nothing particularly serious about
I his breach of the deportation order. He is remorseful for what he did and I
will not come to Hong Kong again. He pleaded guilty at the first available
J J
opportunity.
K K
D2
L L
M 14. D2 has one previous conviction of theft in 2007. M
N N
15. D2, aged 51, is an Indonesian national. He is married with 2
O sons aged 19 and 17, both are students. He received education up to junior O
high school. He works as a rice farmer with an unstable income, which is
P P
dependent on the harvest. He also works as a part time taxi driver earning
Q about HK$1,800 to $3,600 per month. He is the main financial support of Q
the family.
R R
S 16. He also supports his mother, aged 93, who is quite ill and S
suffering from a number of old aged related medical ailments. He is afraid
T T
that he may not able to see his mother alive by the time he returns home.
U U
V V
-7-
A A
B B
C 17. He underestimated the legal consequences and, out of sheer C
stupidity, committed the present offences. He gave an early indication of
D D
guilty plea to Charge 3. His guilty pleas show his regret and remorse.
E E
18. He came to Hong Kong alone and wanted to source and buy
F F
some 2nd hand mobile phones here to resell in Indonesia. He met D1 and
G D3 in a restaurant in Causeway Bay. On 3 June 2016, the three of them G
went to Tsim Sha Tsui. D2 wanted to change some Hong Kong dollars at
H H
a HSBC bank. On leaving the bank and walking along Nathan Road, the
I plan was hatched. I
J J
D3
K K
19. D3 has a clear record.
L L
M 20. D3, aged 36, is now a divorcee. She has four sons aged M
between 3 and 16 and an adopted daughter aged 7. All children are
N N
dependent on her and, except the youngest son, are attending school. Her
O father passed away. She and her children live together with her mother and O
stepfather. The family is supported by her and her stepfather. She works
P P
as a sales lady earning about HK$500 per month whereas her stepfather
Q works as a driver. Q
R R
21. Her family is now relying on the support of her stepfather’s
S income and relatives. She is very concerned about her children and wishes S
to return home to take care of them as soon as possible.
T T
U U
V V
-8-
A A
B B
22. She came to Hong Kong as she wanted to make some money
C for her family. This was the first time she came to Hong Kong. She C
committed the present offence due to poverty. She deeply regrets her
D D
decision on coming to Hong Kong.
E E
23. She played a minor role and did not take part in the first
F F
attempt.
G G
24. Mitigation letters written by D1 and D3 were submitted to the
H H
court for consideration. The contents of the two letters basically confirm
I the mitigation advanced by their counsel. I
J J
25. Both counsel for D1 and D2 have also referred me to HKSAR
K v Ta Dinh Son also known as Bui Trong Khoai and Ngo Van Thanh, CACC K
348/2013, HKSAR v Ngo Van Huy, CACC107/2004 and HKSAR v
L L
Lacharon Wilson Fernandez and Another, DCCC 669/2016.
M M
SENTENCE
N N
O 26. I have carefully considered everything said by the defence O
counsel on behalf of each of the three defendants in mitigation.
P P
Q Charge 1 Q
R R
27. The Court of Appeal in Ngo Van Huy sets out a guideline of
S 12 to 15 months imprisonment after trial for a first offender of S
pickpocketing. The said starting point can be increased if there exist
T T
aggravating features which include: (i) the presence or use of a weapon; (ii)
U U
V V
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A A
B B
the offence is committed in a place in which the public is at particular risk,
C such as crowded places like the MTR or the racecourse, crowded shopping C
areas where the pedestrian traffic is heavy; (iii) the accused commits the
D D
offence in conjunction with another. Where he is part of an organized and
E professional ring of thieves, a substantial increase in sentence may be E
called for; and (iv) the accused is a repeat offender or persistent offender.
F F
I am satisfied that no distinction is to be drawn by the fact that this was an
G attempt. An attempt to commit an offence carries the same punishment as G
if the offence was actually committed.
H H
I 28. In HKSAR v Xiao Ping & others, CACC 147/2012, three I
defendants were convicted of attempted theft. They attempted to steal from
J J
the carrier bag of a shopper inside a shop in Mongkok and were arrested
K nearby. They were first-time offenders. A starting point of 15 months’ K
imprisonment was considered appropriate. Although the operation was not
L L
well planned and the shopping area was not crowded at the time, there were
M aggravating facts, namely that they acted in concert and the offence took M
place in a well-known shopping area. After considering the aggravating
N N
factors, the Court of Appeal held that the starting point should be 21
O months. However, two months were reduced from the starting point on O
account of the defendants’ handicap.
P P
Q 29. In light of the above authority, I find that the appropriate Q
starting point for the present offence is 15 months’ imprisonment. I note
R R
that both D1 and D2 have previous convictions of theft and one of D1’s
S theft convictions involved pickpocketing. As there has been a lapse of S
some years between their last theft convictions and the present offence, I
T T
would not treat their previous theft convictions as aggravating factors.
U U
V V
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A A
B B
C 30. I accept that, as submitted by the defence, no weapon was C
involved and the acts of the defendants could not be said to display a high
D D
level of organization or professionalism. I also note that D2 entered Hong
E Kong a few days after D1 and D3. As such, I cannot rule out the suggestion E
made by the defence that D2 happened to meet D1 and D3 in a restaurant
F F
in Causeway and the plan was hatched as they were leaving the bank and
G walking along Nathan Road. G
H H
31. Although there is no evidence as to whether or not the offence
I location was particularly crowded, I was told by the counsel for D1 that, I
according to the statement of one of main police officers involved in the
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present case, the place was described as “medium crowded”. In any event,
K Tsim Sha Tsui is undoubtedly a well-known tourist and shopping area. K
This offence was committed by more than one person and the facts
L L
admitted by the defendants clearly showed that they were acting in concert,
M ie, (i) one defendant was covering the other defendant whilst unzipping M
T2’s sling bag; (ii) three defendants were standing closely against T2 when
N N
one of them held T2’s sling bag with his left hand and made some
O movement with his right hand. When T2 pulled his sling bag from his side O
to his front, all three defendants slowed their pace and talked to each other.
P P
They then continued to follow both T1 and T2 from a distance and, after a
Q short time, one defendant looked back talking to the other two defendants. Q
By reason of these aggravating factors, I enhance the starting point by 6
R R
months to 21 months.
S S
T T
U U
V V
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A A
B B
32. It was submitted that D3 played a minor role. She participated
C in this joint enterprise. She is, in my view, equally culpable as the other C
two defendants. Based on the roles they have played, I am satisfied that
D D
there is no distinction between their sentences.
E E
33. I am skeptical as to D2’s assertion regarding the poor health
F F
of his aged mother. If one is concerned about one’s parent, one should
G avoid getting involved in this sort of offences in the first place. I don’t G
consider this as a ground to reduce his sentence.
H H
I 34. Apart from the defendants’ guilty pleas, I don’t see any other I
mitigating factors justifying any further reduction in sentence. Giving full
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credit for their guilty pleas, I sentence each of them to 14 months’
K imprisonment. K
L L
Charge 2 and Charge 3
M M
35. In Ta Dinh Son, the Court of Appeal concluded that a starting
N N
point of 27 months imprisonment after trial is appropriate for a first offence
O of breach of deportation order. In HKSAR v Pham Van Tuan, CACC O
272/2010, the defendant pleaded guilty to one charge of unlawful
P P
remaining and one charge of breach of deportation order. It was his second
Q breach of the deportation order. For the breach of deportation order offence, Q
he was sentenced to 21 months’ imprisonment.
R R
S 36. As this was the second breach of the deportation order by D1, S
I therefore adopt a starting point of 31½ months’ imprisonment. Regarding
T T
U U
V V
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A A
B B
D2, I note that this was his first breach and adopt a starting point of 27
C months’ imprisonment. C
D D
37. Apart from their guilty pleas, there exist no other mitigating
E factors. I sentence D1 to 21 months’ imprisonment for Charge 2 and D2 E
to 18 months’ imprisonment for Charge 3.
F F
G 38. The attempted theft offence and breach of deportation order G
offence are separate offences and different in nature. Bearing in mind the
H H
totality principle, I am satisfied that a total of 27 months’ imprisonment for
I D1 and a total of 24 months’ imprisonment for D2 would be appropriate. I
Hence I order as follows:-
J J
K D1 K
L L
Charge 1 - 14 months’ imprisonment
M Charge 2 - 21 months’ imprisonment M
N N
13 months of Charge 2 to run consecutively to Charge 1
O making a total of 27 months’ imprisonment O
P P
D2
Q Q
Charge 1 - 14 months’ imprisonment
R R
Charge 3 - 18 months’ imprisonment
S S
10 months of Charge 3 to run consecutively to Charge 1
T T
making a total of 24 months’ imprisonment
U U
V V
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A A
B B
C D3 C
D D
Charge 1 - 14 months’ imprisonment
E E
F F
G G
( Winnie Lau )
H Deputy District Judge 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
DCCC711/2016 HKSAR v. PURNAMA SETIAWAN AND OTHERS - LawHero