DCCC345/2018 HKSAR v. ZAINUDIN (also known as HENDRI ZAINAL ABIDIN, ZAINAL ABIDIN HENDRI and HADI CANDRA) - LawHero
DCCC345/2018
HKSAR v. ZAINUDIN (also known as HENDRI ZAINAL ABIDIN, ZAINAL ABIDIN HENDRI and HADI CANDRA)
區域法院（刑事）Deputy District Judge Kathie Cheung29/8/2018[2018] HKDC 1072
DCCC345/2018
A A
B B
DCCC 345/2018
C [2018] HKDC 1072 C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 345 OF 2018 E
----------------
F F
G HKSAR G
v
H H
ZAINUDIN
I (also known as HENDRI I
ZAINAL ABIDIN, ZAINAL
J J
ABIDIN HENDRI and HADI
K CANDRA) K
----------------
L L
Before: Deputy District Judge Kathie Cheung
M Date: 30 August 2018 M
Present: Miss. Iva Lo, Public Prosecutor of Department of Justice,
N N
for HKSAR
O Mr. Patrick Hui, of M/s Kenneth Sit, Solicitors, assigned by O
DLA, for the defendant
P P
Offences: [1] Theft（盜竊罪）
Q Q
[2] Attempted theft （企圖盜竊罪）
R [3] – [8] Breach of deportation order（違反遞解離境令） R
--------------------------------------
S S
REASONS FOR SENTENCE
T -------------------------------------- T
U U
V V
- 2 -
A A
B 1. The defendant pleaded guilty to one count of “theft”, contrary B
to section 9 of the Theft Ordinance, Cap. 210 (charge 1), one count of
C C
“attempted theft”, contrary to section 9 of the Theft Ordinance, Cap. 210
D and section 159G of the Crimes Ordinance, Cap. 200 (charge 2) and six D
counts of “breach of deportation order”, contrary to section 43(1)(a) of the
E E
Immigration Ordinance, Cap. 115 (charges 3-8).
F F
Charge 1
G G
H 2. On 6 September 2017, Mr. Chen was at a male toilet situated H
at 3rd Floor, Prince’s Building in Central (“the Washroom”). He placed his
I I
briefcase above his luggage and paid no heed to his belongings. Soon he
J found that his briefcase was missing. His briefcase contained the items J
particularized in charge 1, including cash of USD50,000, HKD8,000 and
K K
RMB1,300.
L L
M
3. The CCTV captured the defendant, together with 2 males, M
entering the Washroom without any briefcase and subsequently leaving the
N N
Washroom about 1 minute later with one of them having a briefcase in his
O hand and followed by the defendant. When the defendant left Prince’s O
Building, he was holding a briefcase.
P P
Q 4. In subsequent cautioned interview, the defendant admitted Q
that he went to a shopping mall in Central together with 2 males. One of
R R
them took Mr. Chen’s briefcase and handed the same to him near a lift.
S They then left in different directions and met again at Sham Shui Po later. S
The defendant was given USD1,000 and was promised to receive
T T
U U
V V
- 3 -
A A
B USD9,000 upon his return to Indonesia. However, at the time of the B
interview, the defendant had not received the outstanding sum.
C C
D Charge 2 D
E E
5. On 12 December 2017, Mr. Lau withdrew some cash at a
F Hang Seng Bank branch situated at Lee Gardens Two, Causeway Bay. He F
then put USD1,500 into a plastic zipper and placed the same into his
G G
backpack. When he was at the junction of Yun Ping Road and Kai Chiu
H Road, Causeway Bay, he heard some zipper-opening noise from his H
backpack. He immediately turned around and saw a South Asian male
I I
behind him. Mr. Lau grabbed the male’s arm and a struggle ensued. He
J saw the male drop his plastic bag containing the cash onto the ground. The J
male immediately escaped. Mr. Lau suffered no loss. The case was then
K K
reported to the police.
L L
M
6. The CCTV captured the defendant waiting at the lobby area M
while Mr. Lau was waiting in the queue to withdraw money in the bank.
N N
After withdrawing money, Mr. Lau went to another level of the shopping
O mall and the defendant followed. When the parties were captured walking O
along Yun Ping Road, Mr. Lau’s backpack was being opened and 4 males
P P
including the defendant were behind him. When a male was trying to take
Q items away from Mr. Lau’s backpack, the Defendant was near that male. Q
R R
7. In a subsequent cautioned interview, the defendant admitted
S he knew the other 4 Indonesia males who planned to steal in Causeway S
Bay on 12 December 2017. He acted as a lookout.
T T
U U
V V
- 4 -
A A
B Charges 3-8 B
C C
8. A Deportation Order was served on the defendant on 23
D October 2014. According to the movement records of the defendant, he D
entered and/or left Hong Kong on various dates as detailed in the Summary
E E
of Facts. Thus, he was in contravention of the said Deportation Order
F when he entered Hong Kong on 9 February, 30 March, 28 April, 6 July, 26 F
August and 30 November 2017.
G G
H 9. Under caution, the defendant admitted that he was subject to a H
Deportation Order, that he had 3 Indonesian passports and used these
I I
passports to enter Hong Kong in 2013, September 2017 and November
J 2017 respectively. J
K K
Mitigation
L L
M
10. The defendant is aged 39 and was born in Indonesia. He is M
married with 4 children. His wife and children live in Indonesia. His wife
N N
is suffering from breast cancer. Both his parents are aged over 70. Prior to
O the present case, he worked as construction worker or hawker in Indonesia. O
He is the sole breadwinner of the family. The defendant has one previous
P P
conviction record for the offence of pickpocketing in 2014.
Q Q
11. In mitigation, it was submitted that the sentencing guideline
R R
for the offence of pickpocketing was applicable to charges 1-2, the usual
S starting point being 12-15 months’ imprisonment. It was conceded that S
certain aggravating factors were present, namely, the offence was
T T
committed in public area, there was some kind of arrangement with other
U U
V V
- 5 -
A A
B unknown persons and the amount of property stolen in the first charge was B
high.
C C
D 12. As far as the breaches of deportation order are concerned, this D
court was referred to the case of HKSAR v Joned Asri, CACC 345/2012
E E
and the reasons for sentence in HKSAR v Delante Antonio Jr Arana, DCCC
F 59/2016 and HKSAR v Chaudhry Mohammad Aslam, DCCC 703/2017. It F
was submitted that the breaches took place in a period of 10 months and the
G G
court was urged not to apply strictly the guidelines as set out in Joned Asri.
H Given the defendant’s guilty plea, the court was urged to impose lenient H
sentences on the defendant.
I I
J Sentence J
K K
13. The offence of theft in charge 1 is akin to pickpocketing. The
L L
offence in charge 2 is an attempt to pickpocket.
M M
14. The Court of Appeal has in HKSAR v Ngo Van Huy [2005] 2
N N
HKLRD 1 laid down the sentencing guidelines for the offence of
O pickpocketing. The usual starting point for a first offender should be in the O
range of 12 to 15 months’ imprisonment. The starting point will be
P P
adjusted in the presence of aggravating features such as the use of weapon,
Q that the offence was committed in crowded places, that the offence was Q
committed by more than one person and the accused is a repeated offender.
R R
S 15. In respect of charge 1, taking into consideration the S
circumstance of the offence including the value of property stolen, I
T T
consider the appropriate starting point to be 15 months’ imprisonment. As
U U
V V
- 6 -
A A
B the offence was committed by the defendant together with 2 other persons, B
the sentence is to be enhanced by 3 months for this aggravating feature.
C C
The sentence is reduced by 1/3 to 12 months for the defendant’s plea.
D D
16. Regarding charge 2, I consider the appropriate starting point to
E E
be 15 months’ imprisonment. Given the offence was committed by the
F defendant with 4 other persons, the sentence is to be enhanced by 3 months F
for this aggravating feature. The sentence is reduced to 12 months for the
G G
guilty plea.
H H
17. For the offence of breach of deportation order, according to
I I
Joned Asri, given the multiple breaches, the defendant should be regarded
J as a repeated offender save in relation to the first breach, the subject matter J
of charge 3. His return to Hong Kong on other occasions under different
K K
identities after he was departed shows his clear intention to evade detection
L L
by the authorities. In this case, I see no reason to depart from the
M
guidelines set out in the case of Joned Asri. M
N N
18. Adopting the approach in the case of Joned Asri, the starting
O point for charges 3-8 are respectively as follows: O
(i) Charge 3: 27 months’ imprisonment
P P
(ii) Charges 4 and 5: 30 months’ imprisonment for each charge
Q Q
(iii) Charge 6: 36 months’ imprisonment
R R
(iv) Charges 7 and 8: 42 months’ imprisonment for each charge
S S
T T
U U
V V
- 7 -
A A
B 19. Given the defendant’s plea, the sentence for each of charges B
3-8 is reduced by 1/3 as follows:
C C
(i) Charge 3: 18 months’ imprisonment
D D
(ii) Charges 4 and 5: 20 months’ imprisonment for each charge
E E
(iii) Charge 6: 24 months’ imprisonment
F (iv) Charges 7 and 8: 28 months’ imprisonment for each charge F
G G
20. Family hardship is generally not a mitigating factor. Apart
H H
from the defendant’s guilty plea, there is no other valid mitigating factor
I justifying further reduction of sentence. I
J J
21. Taking into consideration the totality principle, I consider a
K total sentence of 41 months’ imprisonment is sufficient to reflect the K
criminality of the defendant’s acts. I therefore order 3 months of the
L L
sentence for charge 2 to run consecutive to charge 1, that the sentences for
M charges 3-5 to run concurrently and the combined sentence for charges 3-5 M
to run consecutive to charges 1-2, that the sentences for charges 6-7 to run
N N
concurrently with 3 months of the combined sentence to run consecutive to
O charges 1-5, and that 3 months of the sentence for charge 8 to run O
consecutive to the sentences for charges 1-7, making a total sentence of 41
P P
months. The defendant is hereby sentenced to 41 months’ imprisonment.
Q Q
R R
S (Kathie Cheung) S
Deputy District Judge
T T
U U
V V
A A
B B
DCCC 345/2018
C [2018] HKDC 1072 C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 345 OF 2018 E
----------------
F F
G HKSAR G
v
H H
ZAINUDIN
I (also known as HENDRI I
ZAINAL ABIDIN, ZAINAL
J J
ABIDIN HENDRI and HADI
K CANDRA) K
----------------
L L
Before: Deputy District Judge Kathie Cheung
M Date: 30 August 2018 M
Present: Miss. Iva Lo, Public Prosecutor of Department of Justice,
N N
for HKSAR
O Mr. Patrick Hui, of M/s Kenneth Sit, Solicitors, assigned by O
DLA, for the defendant
P P
Offences: [1] Theft（盜竊罪）
Q Q
[2] Attempted theft （企圖盜竊罪）
R [3] – [8] Breach of deportation order（違反遞解離境令） R
--------------------------------------
S S
REASONS FOR SENTENCE
T -------------------------------------- T
U U
V V
- 2 -
A A
B 1. The defendant pleaded guilty to one count of “theft”, contrary B
to section 9 of the Theft Ordinance, Cap. 210 (charge 1), one count of
C C
“attempted theft”, contrary to section 9 of the Theft Ordinance, Cap. 210
D and section 159G of the Crimes Ordinance, Cap. 200 (charge 2) and six D
counts of “breach of deportation order”, contrary to section 43(1)(a) of the
E E
Immigration Ordinance, Cap. 115 (charges 3-8).
F F
Charge 1
G G
H 2. On 6 September 2017, Mr. Chen was at a male toilet situated H
at 3rd Floor, Prince’s Building in Central (“the Washroom”). He placed his
I I
briefcase above his luggage and paid no heed to his belongings. Soon he
J found that his briefcase was missing. His briefcase contained the items J
particularized in charge 1, including cash of USD50,000, HKD8,000 and
K K
RMB1,300.
L L
M
3. The CCTV captured the defendant, together with 2 males, M
entering the Washroom without any briefcase and subsequently leaving the
N N
Washroom about 1 minute later with one of them having a briefcase in his
O hand and followed by the defendant. When the defendant left Prince’s O
Building, he was holding a briefcase.
P P
Q 4. In subsequent cautioned interview, the defendant admitted Q
that he went to a shopping mall in Central together with 2 males. One of
R R
them took Mr. Chen’s briefcase and handed the same to him near a lift.
S They then left in different directions and met again at Sham Shui Po later. S
The defendant was given USD1,000 and was promised to receive
T T
U U
V V
- 3 -
A A
B USD9,000 upon his return to Indonesia. However, at the time of the B
interview, the defendant had not received the outstanding sum.
C C
D Charge 2 D
E E
5. On 12 December 2017, Mr. Lau withdrew some cash at a
F Hang Seng Bank branch situated at Lee Gardens Two, Causeway Bay. He F
then put USD1,500 into a plastic zipper and placed the same into his
G G
backpack. When he was at the junction of Yun Ping Road and Kai Chiu
H Road, Causeway Bay, he heard some zipper-opening noise from his H
backpack. He immediately turned around and saw a South Asian male
I I
behind him. Mr. Lau grabbed the male’s arm and a struggle ensued. He
J saw the male drop his plastic bag containing the cash onto the ground. The J
male immediately escaped. Mr. Lau suffered no loss. The case was then
K K
reported to the police.
L L
M
6. The CCTV captured the defendant waiting at the lobby area M
while Mr. Lau was waiting in the queue to withdraw money in the bank.
N N
After withdrawing money, Mr. Lau went to another level of the shopping
O mall and the defendant followed. When the parties were captured walking O
along Yun Ping Road, Mr. Lau’s backpack was being opened and 4 males
P P
including the defendant were behind him. When a male was trying to take
Q items away from Mr. Lau’s backpack, the Defendant was near that male. Q
R R
7. In a subsequent cautioned interview, the defendant admitted
S he knew the other 4 Indonesia males who planned to steal in Causeway S
Bay on 12 December 2017. He acted as a lookout.
T T
U U
V V
- 4 -
A A
B Charges 3-8 B
C C
8. A Deportation Order was served on the defendant on 23
D October 2014. According to the movement records of the defendant, he D
entered and/or left Hong Kong on various dates as detailed in the Summary
E E
of Facts. Thus, he was in contravention of the said Deportation Order
F when he entered Hong Kong on 9 February, 30 March, 28 April, 6 July, 26 F
August and 30 November 2017.
G G
H 9. Under caution, the defendant admitted that he was subject to a H
Deportation Order, that he had 3 Indonesian passports and used these
I I
passports to enter Hong Kong in 2013, September 2017 and November
J 2017 respectively. J
K K
Mitigation
L L
M
10. The defendant is aged 39 and was born in Indonesia. He is M
married with 4 children. His wife and children live in Indonesia. His wife
N N
is suffering from breast cancer. Both his parents are aged over 70. Prior to
O the present case, he worked as construction worker or hawker in Indonesia. O
He is the sole breadwinner of the family. The defendant has one previous
P P
conviction record for the offence of pickpocketing in 2014.
Q Q
11. In mitigation, it was submitted that the sentencing guideline
R R
for the offence of pickpocketing was applicable to charges 1-2, the usual
S starting point being 12-15 months’ imprisonment. It was conceded that S
certain aggravating factors were present, namely, the offence was
T T
committed in public area, there was some kind of arrangement with other
U U
V V
- 5 -
A A
B unknown persons and the amount of property stolen in the first charge was B
high.
C C
D 12. As far as the breaches of deportation order are concerned, this D
court was referred to the case of HKSAR v Joned Asri, CACC 345/2012
E E
and the reasons for sentence in HKSAR v Delante Antonio Jr Arana, DCCC
F 59/2016 and HKSAR v Chaudhry Mohammad Aslam, DCCC 703/2017. It F
was submitted that the breaches took place in a period of 10 months and the
G G
court was urged not to apply strictly the guidelines as set out in Joned Asri.
H Given the defendant’s guilty plea, the court was urged to impose lenient H
sentences on the defendant.
I I
J Sentence J
K K
13. The offence of theft in charge 1 is akin to pickpocketing. The
L L
offence in charge 2 is an attempt to pickpocket.
M M
14. The Court of Appeal has in HKSAR v Ngo Van Huy [2005] 2
N N
HKLRD 1 laid down the sentencing guidelines for the offence of
O pickpocketing. The usual starting point for a first offender should be in the O
range of 12 to 15 months’ imprisonment. The starting point will be
P P
adjusted in the presence of aggravating features such as the use of weapon,
Q that the offence was committed in crowded places, that the offence was Q
committed by more than one person and the accused is a repeated offender.
R R
S 15. In respect of charge 1, taking into consideration the S
circumstance of the offence including the value of property stolen, I
T T
consider the appropriate starting point to be 15 months’ imprisonment. As
U U
V V
- 6 -
A A
B the offence was committed by the defendant together with 2 other persons, B
the sentence is to be enhanced by 3 months for this aggravating feature.
C C
The sentence is reduced by 1/3 to 12 months for the defendant’s plea.
D D
16. Regarding charge 2, I consider the appropriate starting point to
E E
be 15 months’ imprisonment. Given the offence was committed by the
F defendant with 4 other persons, the sentence is to be enhanced by 3 months F
for this aggravating feature. The sentence is reduced to 12 months for the
G G
guilty plea.
H H
17. For the offence of breach of deportation order, according to
I I
Joned Asri, given the multiple breaches, the defendant should be regarded
J as a repeated offender save in relation to the first breach, the subject matter J
of charge 3. His return to Hong Kong on other occasions under different
K K
identities after he was departed shows his clear intention to evade detection
L L
by the authorities. In this case, I see no reason to depart from the
M
guidelines set out in the case of Joned Asri. M
N N
18. Adopting the approach in the case of Joned Asri, the starting
O point for charges 3-8 are respectively as follows: O
(i) Charge 3: 27 months’ imprisonment
P P
(ii) Charges 4 and 5: 30 months’ imprisonment for each charge
Q Q
(iii) Charge 6: 36 months’ imprisonment
R R
(iv) Charges 7 and 8: 42 months’ imprisonment for each charge
S S
T T
U U
V V
- 7 -
A A
B 19. Given the defendant’s plea, the sentence for each of charges B
3-8 is reduced by 1/3 as follows:
C C
(i) Charge 3: 18 months’ imprisonment
D D
(ii) Charges 4 and 5: 20 months’ imprisonment for each charge
E E
(iii) Charge 6: 24 months’ imprisonment
F (iv) Charges 7 and 8: 28 months’ imprisonment for each charge F
G G
20. Family hardship is generally not a mitigating factor. Apart
H H
from the defendant’s guilty plea, there is no other valid mitigating factor
I justifying further reduction of sentence. I
J J
21. Taking into consideration the totality principle, I consider a
K total sentence of 41 months’ imprisonment is sufficient to reflect the K
criminality of the defendant’s acts. I therefore order 3 months of the
L L
sentence for charge 2 to run consecutive to charge 1, that the sentences for
M charges 3-5 to run concurrently and the combined sentence for charges 3-5 M
to run consecutive to charges 1-2, that the sentences for charges 6-7 to run
N N
concurrently with 3 months of the combined sentence to run consecutive to
O charges 1-5, and that 3 months of the sentence for charge 8 to run O
consecutive to the sentences for charges 1-7, making a total sentence of 41
P P
months. The defendant is hereby sentenced to 41 months’ imprisonment.
Q Q
R R
S (Kathie Cheung) S
Deputy District Judge
T T
U U
V V