HKSAR v. MACHACA PERALTA OSCAR ALBERTO

DCCC 103/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 103 OF 2014

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Reasons for Sentence

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Charges

1. The defendant pleads guilty to theft by pickpocketing (1^st Charge), breach of deportation order (2^nd Charge), and making false representations to an Immigration Assistant (3^rd – 9^th Charges).

Facts for 1^st Charge

2. On 12 October 2013, the female victim went on board an MTR train at Admiralty Station.  Carried on her right arm was her handbag, which was unzipped and contained her wallet.  Her wallet contained her identity card, a bank card, an Octopus Card and $280 cash.  On the way to Wanchai Station on the train, the defendant stood beside her and used a piece of black cloth to cover his arm and his hand.  When the train arrived at Wanchai Station, the defendant walked away from her.  As she could not find her wallet, she asked him several times whether he had seen it.  He ignored her at first but later said “Drop”.  She saw her wallet dropping from the black cloth held by him.  She accused him of theft.  He kept apologizing and asked her not to call the police.  A passenger intercepted him and later the police arrested him. 

3. Under caution, he admitted using the black cloth to cover his hand when reaching his hand into her handbag to steal her wallet. 

4. He also made admissions relating to the 2^nd – 9^th Charges.

Facts for 2^nd Charge

5. Fingerprint comparison revealed that the defendant was the subject of a deportation order dated 6 May 2010 served on him on 17 May 2010.  He was deported on 17 May 2010 to South Africa and prohibited from entering Hong Kong in future.  At that time he was holding a Peruvian passport in the name of “Eli Edgard Machaca Coyori” with a date of birth stated as 18 August 1970 (“Passport 1”).  The deportation order was accordingly made in that name.  It was explained to him and he signed in acknowledgment of his understanding. 

6. Being in Hong Kong on 12 October 2013, he was in breach of the deportation order.  He had used his own passport (“Passport 2”) for entry in this instance.       

Facts for 3^rd – 9^th Charges

7. Travel movement record as follows revealed that he had used Passport 1 to enter and leave Hong Kong on 14 occasions:

Date of Arrival	Date of Departure
20 January 2009	16 February 2009
20 February 2009	18 March 2009
14 May 2009	10 June 2009
17 June 2009	14 July 2009
18 August 2009	15 September 2009
19 September 2009	7 October 2009
10 October 2009	17 May 2010 (when deported)

Personal background and mitigation

8. The defendant is now aged 43.  He was born in Peru.  He is a Peruvian citizen.  He is married and has 5 children aged between 4 and 21.  He used to be a hawker of electrical parts earning a small income.  He came to Hong Kong on the previous occasions to enter Mainland China to buy goods to send back to his wife.  He alleged that he possessed no passport of his own by then, he had used his brother’s passport, which is Passport 1, for the 14 occasions aforementioned.

9. In the present instance, he came to Hong Kong to look for his wife, whom he heard had come to Hong Kong.  He had used his own passport.  As confirmed by the prosecution, this passport, Passport 2, was issued to him only on 6 September 2013.   

10. He has 1 record for theft by pickpocketing dated 27 October 2009. 

11. The prosecution refers to the female victim’s statement to the effect that the compartment on the train where the present theft took place was not particularly crowded at that time. 

Sentencing considerations

12. The sentencing guidelines for pickpocketing have adopted 12 – 15 months as the starting point for a first time offender in the absence of aggravating factors (HKSAR v Ngo Van Huy [2005] 2 HKLRD 1). 

13. In HKSAR v Gabriel, Malou Lantin HCMA 716/2004, the Court of First Instance identifies 27 months as the starting point for a first breach of deportation order. 

14. In HKSAR v Pahila [2007] 1 HKLRD 410, a case handed up by the prosecutor, the Court of First Instance regards that there is no difference between using a false travel document and making a false representation to an immigration officer.  McMahon J proposes 18 months as the starting point. 

Sentencing this defendant

15. I take 18 months as the starting point for the 1^st Charge.  One-third off for his guilty plea, the sentence is 12 months. 

16. I take 27 months as the starting point for the 2^nd Charge.  One-third off for his guilty plea, the sentence is 18 months. 

17. I take 18 months as the starting point for each of the 3^rd – 9^th Charges.  One third-off for his guilty plea, the sentence is 12 months each. 

18. The 9 charges cannot be seen as part and parcel of the same transaction and shall warrant consecutive sentences.  However, upon consideration of the totality principle, I order the following adjustments:

(1) 18 months to be served for the 2^nd Charge;

(2) 12 months to be served for the 1^st Charge, to be consecutive to the other charges;

(3) 6 months of 12 months for each of the 3^rd – 9^th Charges to be concurrent among themselves but consecutive to the 1^st and 2^nd Charges.

19. The overall sentence is 3 years.