HKSAR v. GONZALES BARSILIA PITAO AND OTHERS

DCCC647/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 647 OF 2016

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REASONS FOR SENTENCE

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1.  There are 3 defendants in this case with the Charge Sheet containing 6 charges.  I call the 3 defendants D1, D2 and D3 respectively.

2.  Upon application by the prosecution and with the consent of the defence, it is ordered that Charges 1, 3 and 5 are left on the Court file and shall not be proceeded with unless with the leave of this Court or the Court of Appeal.

3.  The remaining charges are Charges 1, 4 and 6.

4.  Charge 2 is against D2 only.  Charge 4 is against D3 only.  Each of these charges is for the offence of breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Chapter 115.

5.  Charge 6 is against all defendants.  It is for the offence of theft, contrary to section 9 of the Theft Ordinance, Chapter 210.

6.  All defendants plead guilty to the charges they face respectively.

Facts

Charge 6

7.  About 7:15 p.m. on 19 April 2016, the victim of the 6^th Charge Madam Yi was shopping inside a cosmetic shop.  She was carrying her handbag with a smaller bag inside.  This smaller bag contained the property of Madam Yi including one bank card and cash of about HK$4,800.  Madam Yi later discovered her smaller bag missing from her handbag.  She made a report to the police.

8.  Closed circuit television footage of the cosmetic shop captured that about 7:28 p.m. on 19 April 2016, D1 blocked the sight of Madam Yi with a scarf, while D2 took the smaller bag from the handbag of Madam Yi.  D3 was acting as a lookout.

9.  Without objection from Mr. Littlewood, learned solicitors acting for the three defendants, the closed circuit television footage of the shop was played in Court which recorded how the 3 defendants committed the offence and the circumstances in which they committed it.

10.  About 8:20 p.m. on 20 April 2016, a group of police officers in plain-clothes was patrolling in Tsim Sha Tsui.  They saw the 3 defendants acting furtively at the junction of Nathan Road and Cameron Road.  They also recognized them to be the persons captured in the closed circuit television footage mentioned above. They arrested the 3 defendants.

11.  At the time of arrest, D1 was found to have cash of HK$1,478.80, US$5 and PHP$3,975.50; D2 was found to have cash of HK$2,919.80, US$104 and PHP$9,281.25; and D3 was found to have HK$6,282.90, US$107, RMB10, MOP20, TWD2, PHP$8,043 and BND$1.  The scarves and handbags of the 3 defendants were seized because they were similar to the ones carried by them as captured in the closed circuit television footage.

12.  Each of D1, D2 and D3 made admission under police caution that they had committed the offence that formed the subject matter of Charge 6.  In summary, they admitted that D1 stole the smaller bag of Madam Yi and passed it to D2, D2 then passed it to D3, and they shared the money inside the smaller bag afterwards. D1 then threw away the smaller bag.  D1 admitted that the sum of HK$1,478.80 found in her possession were the remaining sum of the stolen money.  D2 admitted that each of them received a share of HK$1,000, and that the rest of the stolen money was used to pay for their hotel rent and food.  She said that she had already spent all of her share.  D3 also admitted that she received a share of HK$1,000 which was mixed with the Hong Kong dollars found in her possession when she was arrested.

Charges 2 and 4

13.  The 3 defendants arrived at Hong Kong on 14 April 2016 on the strength of their Philippines passports through the Hong Kong International Airport.  They were permitted to enter and stay in Hong Kong as visitors until 28 April 2016. 

14.  Fingerprint checking revealed that a deportation order dated 2 June 1992 had been issued against D2, and a deportation order dated 20 December 2001 had been issued against D3.  The name and date of birth of D2 as stated in the deportation order against D2 were however different from her name and date of birth as stated in the passport she used to enter Hong Kong on 14 April 2016.  Likewise, the name and date of birth of D3 as stated in the deportation order against D3 were different from her name and date of birth as stated in the passport she used to enter Hong Kong on 14 April 2016.

15.  Under caution, each of D2 and D3 admitted that she had entered Hong Kong previously in a different name and that she was aware that a deportation order had been issued against her.

16.  By virtue of the deportation orders against D2 and D3, they were not allowed to enter and remain in Hong Kong at any time after the dates of the respective orders.

Criminal record

17.  D1 has a clear criminal record.

18.  D2 has 3 previous appearances in Court and has been convicted of a total of 5 charges, 3 of them were for either theft or attempted theft, and the remaining two were for breach of deportation order.  Her last appearance in Court was in August 1998. She was sentenced to 18 months’ imprisonment for theft, and 9 months’ imprisonment for breach of deportation order.  The sentences were ordered to run consecutively.

19.  D3 has two previous appearances in Court, and has been convicted of a total of 3 charges.  In 1999, she was fined $2,000 for theft.  In March 2001, for two counts of making false representation to an immigration officer, she was sentenced to 12 months’ imprisonment for each charge, with 3 months of the second charge to run consecutively to the sentence for the first charge, making a total of 15 months’ imprisonment.

Personal and family background

20.  D1 is now 40 years old.  She was born in the Philippines. She studied there up to the secondary level and worked as a clothing factory worker.  She is married. She lives with her husband, two sons aged 15 and 12, and a daughter aged 6 in the Philippines.

21.  D2 is now 59 years old.  She was also born in the Philippines. She studied there up to the secondary level and worked as a clothing factory worker.  She is married.  She lives with her husband and her 23 years old daughter in the Philippines.

22.  D3 is now 58 years old.  She was born in the Philippines. She studied there up to the secondary level and worked as a clothing shop saleslady.  She is married. She is not living with her husband, having separated from him.  She has 5 daughters and one son in the Philippines.  The youngest child is already 16 years old, and the remaining children are aged 23 or above.  D3 reports that she has health problems including high blood pressure and diabetes.

Mitigation

23.  Mr. Littlewood stressed that the three defendants had shown great remorse for what they had done.  They had indicated that they would plead guilty at the first available opportunity, and they had confessed to the police of the roles played by each one of them in the theft offence.  As far as the theft offence was concerned, Mr. Littlewood accepted that there was an aggravating feature in that the three defendants were acting together, but the offence itself was just a straight forward pick-pocketing case without particular sophistication.  Mr. Littlewood also pointed out that the last criminal convictions of D2 and D3 were already many years ago.

Reasons for sentence

24.  I shall deal with Charge 6 first.

25.  Charge 6 is for the offence of pick-pocketing.  The Court of Appeal has already laid down sentencing guidelines for this offence in the case of HKSAR v Ngo Van Huy[1]. Under this guideline, a sentence of 12 to 15 months’ imprisonment after trial is appropriate for a first time offender, and this is an immediate custodial sentence and not a suspended one.  The Court of Appeal also points out that the sentence can be adjusted upwards if there are aggravating features, such as the offence is committed in a place in which the public is at a particular risk, for instance, crowded shopping areas, or the accused commits the offence in conjunction with others, or the accused comes from overseas to commit the offence, or he is a repeated offender.

26.  In the present case, it is clear that considerable skill had to be used to remove the smaller bag of Madam Yi from her handbag.  A tool (a scarf) had also been used to facilitate the commission of the offence, although it was not a tool which would damage any property of the victim, but a tool that could assist the defendants committing the offence without being noticed by the victim or by any other persons.  In addition, Madam Yi had lost a bank card and cash in the considerable sum of about HK$4,800.  Taking these facts into account, I am of the view that the appropriate starting point of the sentence for Charge 6 is 15 months’ imprisonment.

27.  I now consider whether there are aggravating features in this case that warrant an upward adjustment of the starting point.

28.  First, I have seen the closed circuit television footage recording the event.  It is clear that when the defendants committed this offence, they were surrounding the victim when the victim’s movement was limited by the presence of some shelf or counter next to her, with some other customers of the shop in her near vicinity as well.  It is quite obvious that the crowded condition of the location at that point of time made Madam Yi particularly vulnerable to the defendants who undoubtedly were taking advantage of that condition to execute their criminal venture.  I am of this view that the crowded location of the offence constituted an aggravating feature.  The starting point of 15 months’ imprisonment should be increased by 3 months to reflect this feature. 

29.  Second, the closed circuit television footage also shows that the 3 defendants were acting in concert and that they committed the offence in a professional manner.  Another 3 months should be added to the starting point to reflect this factor. 

30.  I have also considered whether the 3 defendants came to Hong Kong specifically for the purpose of committing this pick-pocketing offence.  I note that they committed this offence on 19 April 2016 which was the 5^th day of their stay in Hong Kong.  Due to the lapse of time from their entries to the day of the offence, I am unable to draw the only and irresistible inference that they came to Hong Kong specifically for the purpose of committing the pick-pocketing offence.  For this reason, their sentence will not be adjusted upward on this ground.

31.  I have also considered the criminal record of D2 and D3.  Both of them had previous convictions for the offence of theft or attempted theft.  From the heavy prison sentences imposed on D2, it appeared that the attempted theft in 1992 and the theft in 1998 were also offences of pick-pocketing.  However, her last conviction and sentence were already some 18 years ago.  I shall not treat her as a persistent or habitual offender.  As far as D3 is concerned, she has only one conviction of theft which was in 1999 and she was fined only.   It appeared that she was not convicted of a pick-pocketing offence on that occasion.  It was also a conviction of some 17 years ago.  For these reasons, I also do not regard the criminal record of D2 or D3 warrants an increase in her sentence.

32.  D1 of course has a clear criminal record.

33.  In other words, in the absence of any mitigating factor, the sentence to be imposed on each defendant in respect of Charge 6 will be 21 months’ imprisonment. 

34.  As far as mitigation is concerned, I find that the only mitigating factor in favour of the 3 defendants is their guilty plea.  Each of them is entitled to have their sentence discounted by one-third to reflect this factor.  There is no other ground to reduce their sentence any further.

35.  For these reasons, each of D1, D2 and D3 is sentenced to a term of 14 months’ imprisonment for the pick-pocketing offence (Charge 6).

36.  I shall now deal with the offence of breach of deportation order, which is Charge 2 against D2 and Charge 4 against D3.

37.  For the offence of breach of deportation order, the appropriate starting point is 27 months’ imprisonment for a defendant who committed this offence for the first time: HKSAR v Cortez Emily Bisoy [2]; HKSAR v Ta Dinh Son [3].

38.  In the present case, this is the third time D2 committed this offence.  However, I note that her last similar conviction was in 1998 which was some 18 years ago. For this reason, I shall treat her as if this were the first time she committed this offence.

39.  As far as D3 is concerned, this is the first time she committed this offence.

40.  In accordance with the authorities mentioned, I adopt a starting point of 27 months’ imprisonment for each of Charges 2 and 4.

41.  D2 and D3 plead guilty.  They are entitled to be given the usual one-third discount.  There is no other ground to reduce the sentence.

42.  For these reasons, D2 is sentenced to 18 months’ imprisonment for Charge 2, and D3 is sentenced to 18 months’ imprisonment for Charge 4.

43.  As to whether the sentences to be served by D2 and D3 for this offence should run concurrently or consecutively either in whole or in part to the sentence imposed for the pick-pocketing charge, I note that this immigration offence and the theft offence are completely different in nature, and they have no overlapping criminalities.  I have also considered the authority of Ta Dinh Son.  I am also of the view that even if the sentences for these two offences are to run wholly consecutively, the overall sentence is not too long in breach of the totality principle, but it can adequately reflect the criminalities of the two offences.  For these reasons, I order that the sentences for the breach of deportation order charge and the theft charge are to run wholly consecutively.

44.  In other words, the defendants are sentenced as follows: