HKSAR v. LACHARON WILSON FERNANDEZ AND ANOTHER

DCCC 669/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 669 OF 2016

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Reasons for Sentence

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1.  Both defendants pleaded guilty to the joint charge of theft. 2nd defendant also pleaded guilty to the charges of breach of deportation order and making a false representation to an Immigration Officer.

2.  The facts were that at about 4.30 pm on 11 May 2016, Mr Yu withdrew cash of 100,000 from a bank in Hunghom and put the cash into an envelope.  Later, he got on a bus, heading towards Tsim Sha Tsui.  After he got on the bus, he noticed the 1st defendant standing on his left while the 2nd defendant on his right.  There were also 10-odd passengers standing on the lower deck of the bus.  Upon arriving at a bus stop at Gillies Avenue South, the 1st defendant knelt down and tapped Mr Yu’s left leg repeatedly. Then 1st defendant got up and got off the bus.

3.  Suddenly, Mr Yu heard someone told the bus driver not to drive away.  Then he noticed the said envelope was missing.  He immediately got off the bus and saw the 1st defendant being intercepted by police officers whom happened to see the 1st and the 2nd defendant and others acting suspiciously before they got on the bus and had chased after the bus.  Upon search of 1st defendant, no cash was found on him.

4.  Mr Yu then returned to the bus to search for his money.  He then saw the 2nd defendant dropping the said envelope onto the floor near the bottom of the staircase of the bus.  Mr Yu retrieved the said envelope and found his money still inside.

5.  Both defendants were then arrested and cautioned.  Upon investigation, it was found that a deportation order dated 15 December 2015 was issued against the 2nd defendant, and it was found that the 2nd defendant entered Hong Kong on 28 April 216 with a passport bearing the birthday of 2 July 1973. 

6.  Upon further check, it was found that both defendants entered Hong Kong at the international airport at 9.31 and 9.32 am respectively on 28 April 2016, and both defendants left Hong Kong through Lowu Terminal at about 10.45 am on 11 May 2016.  D1 returned to Hong Kong at 2.02 pm and D2 returned at 1.46 pm on the same day. 

7.  In the video-recorded interview, 2nd defendant admitted under caution that his real name was Dequillo Robert and his genuine birthday should be 4 April 1972 instead of 2 July 1973.  He further admitted that he had changed his name to Dacidilla.

8.  Both defendants now admit acting in concert to steal the property of Mr Yu.

9.  1st defendant, aged 42, he had a clear criminal record while the 2nd defendant, aged 44, had a previous conviction of attempted theft where he was sentenced to 8 months’ imprisonment in July 2015.

10.  Mr Booth submitted that the 1st defendant was a driver of tricycle in Philippines, earning about 4,500 pesos per month and had two children to support but he had difficulty in meeting all expenses.  For the 2nd defendant, he was a carpenter in Philippines, earning about 6,500 pesos per month.  However, he had a big family of eight family members relying on him to support.  He had a very heavy financial burden like the 1st defendant, and both defendants committed the present offence in the hope of relieving their financial burden.

11.  Mr Booth further submitted that both defendants admitted the offence at the outset and saving court’s costs and time, and the victim did not suffer any financial loss as the money was finally recovered.  2nd defendant also put in a letter, telling the court that the health condition of his aging parents got worsening and he deeply regretted for his wrongdoings where his family would suffer from it as well.  As both defendants pleaded guilty, they hope for a lenient sentence.

12.  Theft is a serious offence, particularly pickpocketing where the Court of Appeal in HKSAR v Ngo Van Huy CACC 107/2004 had set down the guideline of 12 to 15 months’ imprisonment after trial, which is appropriate for a first-time offender but this will increase along with the existence of aggravating features such as the offence taking place in a crowded area like the present case inside a bus, other factors including organised and professional activities; pickpockets from overseas, and also when there was more than a person taking part in the offence. 

13.  In the present case, both defendants acted in concert to steal the money from the victim inside a bus and the amount was substantial.  The facts were serious.  I take the starting point of 15 months and the aggravating factors altogether as stated above for another 12 months.  That makes a total of 27 months’ imprisonment. Upon guilty plea, that be reduced to 18 months’ imprisonment.

14.  And for the 2nd defendant, it is the second time within a short period.  I would have set a higher starting point but for the 2nd defendant’s timely guilty plea and his remorseful attitude shown to the court, therefore I will still sentence the 2nd defendant on the 1st charge of 18 months instead.

15.  And for the breach of deportation order and making false representation to immigration officers, the Court of Appeal in HKSAR v Ta Dinh Son CACC 348/2013 had gone through some other cases and concluded that a starting point of 27 months’ imprisonment is appropriate for the offence of breach of deportation order.  I would adopt the same and that be reduced to 18 months upon guilty plea by the 2nd defendant.

16.  As to the 3rd charge of making false representation where the 2nd defendant had changed the birthday to evade the detection of being the subject of a deportation order, the facts were also serious.  I would take a 12 months’ imprisonment as the starting point, reducing it to 8 months upon guilty plea.

17.  Lastly, by applying totality principle, I consider that altogether 28 months’ imprisonment is appropriate for the 2nd defendant, and the sentence would be as follows:

1st defendant

1st charge: 18 months’ imprisonment.

2nd defendant

1st charge: 18 months’ imprisonment;

2nd charge: 18 months’ imprisonment;

3rd charge: 8 months’ imprisonment;

The 2nd and the 3rd charges be run concurrently, of which 10 months be run consecutive to the 1st charge, that makes a total of 28 months’ imprisonment.

18.  So the 1st defendant, 18 months’ imprisonment. And the 2nd defendant, 28 months’ imprisonment for all charges.