HKSAR v. AMIGO RODOLFO DUMAQUETA

DCCC 660/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 660 OF 2016

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REASONS FOR SENTENCE

1.  Rodolfo Dumaqueta Amigo you have pleaded guilty to one charge of breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance[1] (charge 2) and one charge of attempted theft, contrary to section 9 of the Theft Ordinance[2](charge 3).

Attempted theft

2.  On 30 May this year PC 9557 and Sgt Kwan were patrolling in Terminal 1 of the Hong Kong International Airport when they observed you acting furtively outside A1 Bakery shop.  You were seen constantly looking at customers inside the shop.

3.  One customer, Mr Guerra, was buying some food before taking his flight to Malaysia.  Mr Guerra placed his suitcase and rucksack beside him while he chose some food.  You entered the shop and using your coat as a shield opened the rucksack and took out Mr Guerra’s passport holder.  You then left the shop.

4.  Once outside the shop you opened the passport holder, which contained Mr Guerra’s passport and boarding pass.  You then went back in the shop and when you tried to place the passport holder, passport and boarding pass on a food tray you were arrested by the police officers.  You then tried to walk to Mr Guerra to give him back his property[3]. Your actions were all captured on CCTV.  

Breach of deportation order

5.  Fingerprint check revealed you were subject of a deportation order issued on 17 September 1986[4] when you were ordered to leave Hong Kong and prohibited from being in Hong Kong any time after 16 September 1986.  Travel index check revealed you had entered Hong Kong on 28 May this year using a passport[5] in a different name from that in the deportation order. 

Mitigation

6.  In passing sentence I have carefully considered everything said on your behalf by Mr Chu together with your letter of mitigation[6], including that in April this year one of your daughters died leaving you to look after five grandchildren and that your farm was repossessed when you failed to pay the mortgage.  By reason of poverty you returned to Hong Kong. Mr Chu frankly tells the court you came to steal.  You say you are remorseful and promise not to return to Hong Kong again. 

Breach of deportation order

7.  There are no guideline sentences for breach of deportation order.  The maximum sentence is 7 years imprisonment.  Generally the starting point for a first breach is one of 27 months imprisonment (see for example HKSAR v Ta Dinh Son[7]). 

8.  Since 1986, when you were deported for life, you have entered Hong Kong in breach of the deportation order on eleven previous occasions between 1989 and 2013 when you received sentences ranging between 6 months and 24 months imprisonment.   

9.  Repeat offending is a significant aggravating feature justifying enhancement of the starting point of 27 months imprisonment.  Mr Chu submits that an enhanced starting point of between 3½-4 years imprisonment is appropriate[8].  

10.  In HKSAR v Ta Dinh Son the Court of Appeal held that for the 7th breach of a deportation order the appropriate sentence before discount for the plea of guilty was 4 years imprisonment.   This is your 12th breach of a deportation order. 

11.  Your last appearance in court was on 12 December 2012 when you were sentenced to 2 years imprisonment[9]. Previous sentences clearly have not deterred you from repeatedly returning to Hong Kong.

12.  Taking into account this is your 12th breach of deportation order I am satisfied the appropriate sentence before discount for the plea of guilty is 4 years imprisonment.  Giving you full credit for your plea of guilty reduces the sentence to 2 years and 8 months imprisonment. 

Attempted theft

13.  The theft is akin to that of pickpocketing.  In HKSAR v Ngo Van Huy[10]as applied in HKSAR v Duong Van Dung & others[11]the Court of Appeal confirmed the guideline sentence for pickpocketing after trial is 12 to 15 months imprisonment for a first offender, where there are no aggravating features. 

14.  Taking into account the theft took place at the airport where passengers are particularly vulnerable to this type of theft I am satisfied the starting point after trial is 15 months imprisonment. 

15.  The fact an accused is a persistent offender is an aggravating feature.  You have eight similar offences for theft or attempted theft, which by the sentences imposed all appear to be pickpocketing offences.  When you last appeared in court on 12 December 2012 you were also sentenced to 1 year and 2 months imprisonment for pickpocketing. 

16.  By reason of your persistent offending and that you came to Hong Kong for the purpose of stealing I enhance the starting point by 9 months to 2 years imprisonment.  Giving you full credit for your plea of guilty the sentence is reduced to 1 year and 4 months imprisonment.

Totality

17.  The two offences are separate and distinct for which consecutive sentences are appropriate.  I am satisfied wholly consecutive sentences are appropriate[12], making a total sentence to be served by you of 4 years imprisonment, which I am satisfied properly reflects your criminality on the two charges. 

Humanitarian grounds

18.  In HKSAR v SM Kawsar Ahammed [13]the Court of Appeal reduced the sentence by 3 months on the grounds that after the arrest of the appellant his wife passed away because of cancer leaving a young daughter without a parent.  Whilst I am sympathetic to your family circumstances you came to Hong Kong in full knowledge that after the death of your daughter you had to look after the grandchildren.  I am satisfied there are no humanitarian grounds to reduce your sentence. 

Sentence

19.  You are convicted and sentenced as follows:

Charge 2 – 2 years and 8 months; and

Charge 3 – 1 year and 4 months consecutive to charge 2.

Total sentence: 4 years imprisonment.