HKSAR v. DE LA CRUZ ANGELO PORTO AND OTHERS

DCCC 384/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 384 OF 2017

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REASONS FOR SENTENCE

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1.  The defendants were jointly charged with one count of attempted theft, contrary to section 9 of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200.

2.  While the first defendant was further charged with breach of a deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115.

3.  The defendants pleaded guilty to their respective charge(s) and admitted the facts.  They were convicted accordingly.  

Summary of facts

4.  D1 entered Hong Kong at 6:50 pm on 18 January 2017 via Hong Kong International Airport under the name “DE LA CRUZ, ANGELO PORTO”.  D2 and D3 entered Hong Kong at 11:54 pm on the same day via Hong Kong International Airport.

Charge one (D1 – D3)

5.  At about 5:45 pm on 19 January 2017 (Thursday), D1 to D3 were acting furtively (watching the belongings and bags of passers-by) inside MTR Causeway Bay station and MTR Wan Chai station.  They travelled from Causeway Bay station to Wan Chai station, after lingering a while without exiting boarded the MTR train and returned to Causeway Bay station again.

6.  Later at about 6:18 pm, while travelling on the escalator DE1 up to exit D of the Causeway Bay station, the three defendants stood behind the victim at different positions, acted together attempted to steal from the victim.  D1 who was directly behind the victim unzipping the victim’s rucksack from behind and inserting his right hand therein.  D3 was standing next to D1 watching while D2 was one step behind the two defendants spreading his arms and holding onto handrails of both sides.  As the victim getting near to the top of the escalator, D1 withdrew his hand from the rucksack. 

7.  This attempted theft by pickpocketing was witnessed by SPC47586.  The officer called for assistance and the defendants were intercepted and arrested.

Charge two (D1)

8.  Fingerprint comparison reveals that D1 is the subject of a deportation order dated 11 May 1988 and issued against him under another name of his.  The deportation order required D1 to leave Hong Kong and prohibited him from being in Hong Kong at any time thereafter.  The order was certified to have been served on him on 7 June 1988 and is still in force.  He was first deported to the Philippines on 1 July 1988.

9.  Between 18 January 2017 and 19 January 2017, D1 was in Hong Kong in contravention of the deportation order against him.

Background &Mitigation

D1

10.  D1 aged 68, a Filipino came to Hong Kong as a visitor.  He has 8 previous convictions all related to dishonesty since 1982, and among which involving 12 counts of breach of deportation order since he was served the deportation order in 1988.  He was last released from prison in September 2015.

11.  He is a widower, his children within the wedlock all grown up and have their own family.  The defendant is living with his girlfriend and their daughter aged 13 in Philippines.  He used to be a taxi driver and then changed to be a tailor assistant earning about HK$1,000 per month.

12.  He is the sole breadwinner of the family, because of financial needs, he borrowed money from loan shark to come to Hong Kong to commit pickpocketing.  He did not know the other defendants in Philippines, they met in a guesthouse in Hong Kong, and lined up to commit the crime together.  He knew it was a serious offence, he pleaded guilty, he would not commit a crime again, he was of old age and urged the court for leniency.

D2

13.  D2 aged 33, a Filipino came to Hong Kong as a visitor.  He has a clear record.  He is married with 2 daughters aged 1 and 3 years old.  He lives with his wife, children, his mother, his step-father and his grandmother in Philippines.  Only he and the step-father are working.  He last worked as a driver and earned around HK$2,300 per month.

14.  Being misled that he could work in Hong Kong even as a visitor, he borrowed money to come to Hong Kong to work, in order to earn more for his family.  He met D1 and D3 in a guesthouse in Hong Kong, and lined up to commit the crime together.  He knew it was a serious offence, he pleaded guilty, he was deeply regretted for his wrong and urged the court for leniency.  

D3

15.  D3 aged 39, a Filipino came to Hong Kong as a visitor.  She has a clear record.  She is married with 2 children aged 21 and 20 years old, both are student. The husband is a drug addict and suffered from drugs stimulated illness and without earning capacity.  She was the sole breadwinner earning about HK$1,000 odd per month.

16.  Being misled that she could work in Hong Kong even as a visitor, she borrowed money to come to Hong Kong to work, in order to earn more for her children’s education.  She met D1 and D2 in a guesthouse in Hong Kong, and lined up to commit the crime together.  She knew it was a serious offence, she pleaded guilty, she was deeply regretted for her wrong and urged the court for leniency.  The children also wrote mitigation letters for their mother.

Sentence

17.  In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, it was said that theft by pickpocketing is a type of offence that society severely and rightly condemns, and that a guideline sentence of 12 to 15 months’ imprisonment after trial is appropriate for a first time offender. That, however, is subject to the existence of aggravating features, eg outsider offender, joint enterprise, crowded public places. 

18.  It is recognised that “foreigners who make lightning forays in Hong Kong with the object of making quick profits from criminal ventures must be discouraged” R v Ambas and Timzon CACC 441/1994.  If an offender comes to Hong Kong with a travelling document accepted by the Hong Kong Immigration Department specifically to commit serious crime, this constitutes an aggravating factor.  

19.  D1 came to Hong Kong to commit pickpocketing, while D2 and D3 said they were misled that they could be able to obtain employment in Hong Kong as visitor.  Even accepting the mitigation of D2 and D3, they should have learnt the condition imposed by the immigration after they entered Hong Kong.  According to their mitigation, very quickly afterwards they lined up with D1 and committed the offence with a view to make quick money within 24 hours of their arrival.   

20.  In HKSAR v Chan Mei-yee Carman [2010] 4 HKC 571, the court held that the attempted theft justified a starting point of 15 months’ imprisonment, but that this could be increased to an overall sentence of 30 months’ imprisonment once the aggravating features, which included the commission of the offence by more than one offender in a busy street and a bad criminal record, were factored in.

21.  In HKSAR v Cheng Wai Leung CACC 358/2016, the defendant jointly charged with Lam for stealing by pickpocketing a smartphone on a street in Mongkok.  The Court of Appeal upheld a final starting point of 30 months, of which started with 15 months and further enhancement of 3 months for crowded place, 3 more months for joint enterprise, and 9 more months for persistent re-offending.

22.  The defence also referred me to the case of HKSAR v Fabroa Marites Bacus & others DCCC 960/2011 which was about four defendants jointly charged with pickpocketing at a crowded shopping centre on the next day they arrived in Hong Kong.  The sentencing judge adopted the basic starting point of 15 months and enhanced to 30 months for the defendants with previous conviction records and enhanced to 24 months for the one with clear record.

23.  In the present case, the attempted theft committed during rush hours in a MTR station, a place in which the public was at particular risk, by the three defendants in an organised and professional manner.  The defendants were seen looking for their target inside the MTR stations for more than half hour, before they approached the victim.  The criminality of an attempted theft is no less than a completed theft. 

24.  Having considered the whole circumstances, I am with the view that for the attempted theft in the present case it is justified to start with 15 months’ imprisonment, then enhanced it by 3 months for the commission in the crowded MTR station, a further 3 months for joint enterprise and a further 3 months for outside offender, making a total of 24 months for D2 and D3.  The two defendants indicated their plea at the earliest opportunity, they were entitled to 1/3 discount, however, I do not consider there to be any mitigating factors that called for further deduction.

25.  In the case of D1, he had 8 previous convictions related to dishonesty (4 of which is pickpocketing) since 1982, I consider the fact of his repetitive offending for the same type of offence amount to an aggravating factor and enhanced to a further 3 months, making a total of 27 months.  

26.  The maximum sentence for breach of deportation order is 7 years.  In HKSAR v Wabhi Tri-Wahyu also known as Wahyu Wabhi Tri, Supri Yatnak and Supriyatnak CACC 345/2014, Macrae JA confirmed that the starting point of 27 months’ imprisonment appeared to have been in line with Court of First Instance appellate authority for a first breach of a deportation order.  In HKSAR v Pham Wan Hung CACC14/2011, the Court of Appeal considered for a defendant with four previous similar conviction of breach of deportation order, the appropriate starting should be 42 months’ imprisonment.

27.  InHKSAR v Cristian Alberto Cardona Quinchia CACC 106/2016,McWalters JA was in the opinion that where different culpability between the breach of deportation order and other criminal charges, the general principles still applied in considering the overall sentence.  “It may well be appropriate in many case for the sentences to be largely, if not wholly, consecutive in order to strengthen the bite of the breach of deportation order offence and provide a meaningful deterrent to persons against whom such orders are made from breaching those orders.”

28.  The deportation order was served to D1 in 1988, since then he has been convicted on 12 counts of breach of a deportation order.  The deportation order was issued against the defendant under the name “Mr Angel S Cabalza alias Antonio J Tubon”, the then date of birth being 27 February 1947.

29.  The prosecution submitted the Reasons for sentence of his last criminal case DCCC 798/2013 and to clarify his date of birth I also called for the case file.  It revealed that he had eight different names known to Hong Kong Immigration Department by then.  He obtained a new and genuine passport from the Philippine authorities on 28 June 2012 in the new name of Emmanuel Trinidad Domingo, date of birth being 26 September 1954 and said to be aged 58.  After his arrest for pickpocketing on 16 July 2013, it was later found out that he had entered and left Hong Kong on 6 occasions between 24 July 2012 and 18 June 2013.

30.  He was last released from prison in September 2015.  Upon his arrest on 19 January 2017, it was found that the defendant was issued with another Philippine passport in another name unknown to the Hong Kong Immigration Department, this time the date of birth being 13 January 1949.  The said passport was issued on 27 July 2016.  The prosecution said no further investigation would be carried out for the discrepancies noted from his various passports.  I indicated to the defence that with the different date of birth provided by the defendant no weight would be given to the mitigation that D1 is of old age.  The defence did not submit further on his age.

31.  The defendant was convicted on 12 counts of breach of deportation order.  By his last case in DCCC 789/2013, he had been convicted on 5 counts of breach of deportation order, the sentencing judge in his last case adopted a starting point of 3 years for each of his breach of deportation order, after allowing discount for his plea, the sentence was ordered to run partly concurrent, making a total of 27 months.  Yet the defendant committed further breach again after his release in September 2015 by obtaining passport in new name again.   His repetitive re-offending called for deterrence.  After consideration, I adopted 45 months’ imprisonment as the starting point for charge 2.

32.  D1 indicated his plea of guilty in the earliest opportunity, he was entitled to 1/3 discount.  I do not consider there to be any mitigating factor that called for further deduction.  Unlike the defendant in Pham Van Hung whose offences were both immigration offence, the two offences in the present case are of different nature. 

33.  In his last case DCCC 798/2013, in addition to the 7 counts of breach of deportation order, the defendant was given another consecutive sentence of 12 months for pickpocketing, ie a total of 39 months.  Taking into account of the totality consideration, I consider it is appropriate to have his sentence to run partly concurrent and partly consecutive, making a total of 42 months’ imprisonment.

Order

34.  D1

Charge one: sentenced to 18 months’ imprisonment;

Charge two: sentenced to 30 months’ imprisonment, 6 months concurrent, making a total of 42 months.

D2

Charge one: sentenced to 16 months’ imprisonment.

D3

Charge one: sentenced to 16 months’ imprisonment.