HKSAR v. EMMANUEL TRINIDAD DOMINGO AND OTHERS

DCCC 798/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 798 OF 2013

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to seven offences of breach of a deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115, and to a single offence of theft, contrary to section 9 of the Theft Ordinance, Cap. 210. You admitted the brief facts and I convicted you. What occurred is this:-

2.  In respect of charge 8 first, just after 2 pm on 16 July last, Mr Zhang Dong, PW1, and Mr Li Yanzhong, PW2, were about to cross the road at the junction of Percival Street and Hennessy Road, Causeway Bay.  You were holding an umbrella and you went close to PW1.  PW1 found his bag opened and wallet missing.  They intercepted you and found the wallet in your right front trousers pocket.  That wallet contained HK$2,693, RMB1,818.80, two Octopus cards and five bank cards.  You were arrested by a police officer and in an interview under caution subsequently admitted stealing the wallet.

Charges 1 to 7, being breach of deportation order

3.  A deportation order was issued on 11 May 1988 against you when you were then known as Angel S Cabalza, also known as Antonio J Tubon.  The order was served on you and explained to you on 7 June 1988 and is still in force.  You were then deported to the Philippines on 1 July 1988. You have eight different names known to Hong Kong Immigration Department.  In the Philippines, you obtained a new and genuine passport from the Philippine authorities on 28 June 2012 in the new name of Emmanuel Trinidad Domingo, a name which is not known to the Immigration Department here.  You used that new passport to enter Hong Kong on seven different occasions and leave on six occasions.  Those are the dates referred to in the charges.

4.  On arrest and caution, you confirmed that you understood the deportation order.  You admitted to 12 previous convictions on seven occasions.  These included five breach of deportation orders and seven offences of dishonesty. 

5.  Ms Fung on behalf of prosecution placed before me the case of HKSAR v Bui Van Khai CA Cr App 173/2012.  In that case a starting point of 3 years reduced to 2 years for a plea of guilty was approved of for breach of deportation order. 

6.  Mr Nasir then entered mitigation on your behalf.  I am very obliged to him for that it is very helpful when it is written form as this was.  Whilst the full text is placed on file, I shall summarise what is said therein for the record.  Mr Nasir made the point that from the outset you were cooperative from the time of your arrest, making full and frank admissions from the outset.  You indicated at the first available opportunity your intention to plead guilty before the court.  He submitted the court should not enhance sentence for each succeeding offence as it does not thereby become more serious.  In support of that proposition, he submitted to me the case of HKSAR v Joned Asri CA Cr App 345/2012.  In that case, the learned Judge had taken a rather complicated approach and the original sentence of 59 months was eventually reduced to some 33 months for a number of offences. 

7.  The 8th offence to which you have pleaded guilty is the one of theft by pickpocketing.  Mr Nasir submitted that there were no aggravating features.  He reminded that for a first-time offender the starting point is 12 to 15 months and he submitted this should be run concurrently with the sentences imposed in respect of the breaches of deportation order. 

8.  He then referred me to your personal circumstances.  You are 58 years of age and a taxi driver by occupation in the Philippines with a modest income.  You are a widower, you have six children, four from your late wife and two with your present cohabitee.  You are financially responsible for the two younger children.  He tells me that you do suffer from poor health being diabetic and suffering from hypertension and back pain, that you are remorseful and you promise not to breach the deportation order again and he completed his mitigation by asking for leniency on your behalf.

9.  I turn now to the sentence.  You are a repeat offender in respect of both offences.  You have five previous convictions for breach of deportation order and seven for crimes of dishonesty.  On this occasion, you face seven convictions for breach of deportation order committed between July 2012 and July of this year.  I am told that your purpose in coming illegally to Hong Kong was to purchase good presumably for resale in the Philippines.  Whilst I draw no adverse inferences from this, I do comment that it is very strange and suspicious that you need to use so many aliases, however, that is merely by way of comment.

10.  Additional to the breach of deportation order, you are convicted of one theft by pickpocketing.  From your record it would seem that this is your fourth definite pickpocketing conviction.  In your favour, I do accept that you were cooperative from the outset, first of all with your captors who made a citizen’s arrest, then with the police and now with the court by your plea of guilty.  I accept that there are no aggravating features in respect of the pickpocketing, save for the fact that you are a repeat offender.  I also accept that you acted alone and the goods taken were fully recovered.

11.  In respect of the breaches of deportation order, I am told that you are remorseful and promise not to come again.  Considering that you have committed this offence on 12 separate occasions, I do question that promise.

12.  I turn now to the actual sentences.  In respect of each breach of deportation order, I take as a starting point 3 years’ imprisonment reduced to 2, that is on charges 1 to 7. 

13.  In respect of charge 8, I take as a starting point 18 months’ imprisonment reduced to 12 months.  The sentences will be served in this way:-

On the 1st charge, I sentence you, as I have said, to 2 years’ imprisonment.

On the 2nd charge the same sentence, 21 months of that will be concurrent and 3 months consecutive.

On charges 3 to 7, the period of 2 years’ imprisonment will be concurrent to each other and concurrent to the sentence of 27 months.

The sentence in respect of the theft by pickpocketing of 12 months will be wholly consecutive.

That is a total of 39 months’ imprisonment.