HKSAR v. AVENDANO LUCILA ROQUE

DCCC 139/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 139 OF 2015

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant has pleaded guilty to two charges, the first being a theft charge contrary to Section 9 of the Theft Ordinance, Cap 210; the second charge is a breach of deportation order contrary to Section 43(1)(a) of the Immigration Ordinance, Cap 115.

2.  Where Charge 2 is concerned, the defendant was served a deportation order dated 22 October 1991 and it is still in force now. Therefore her arrival in Hong Kong on 26 November 2014, albeit under an alias, is a breach of that order.  

3.  As for the facts relating to Charge 1, they are as follows.  On 3 December 2014, about a week after the defendant arrived in Hong Kong, the victim was travelling on the MTR between Sai Wan Ho and Central.  He had in his rear trouser pocket 24 $500 notes, a total of $12,000 cash in his rear pocket.  He got off the MTR at Central and was heading to an exit.  He stepped on the escalator to go up and before he did that, he checked his back pocket and his roll of banknotes was still there.

4.  On the escalator, the defendant, who stood in front of him, dropped her Octopus card and she knelt down to pick it up.  She took her time.

5.  Behind the victim, a male jostled him by pushing and pressing up against him, so much so that the victim turned around to ask the male to back away.

6.  After the defendant had picked up her Octopus card, this male stopped jostling the victim.  Not long after, the victim realised that his roll of banknotes was missing from his back pocket, but he immediately looked behind him and saw the defendant and that male taking the escalator back down.  He felt the way they were standing, they were together. 

7.  He was suspicious and chased after them.  The victim managed to grab the defendant but the male got away.  The police were called and when they searched the defendant’s handbag, they found a wallet containing $7,000 cash.  This cash was made up of 14 $500 banknotes. 

8.  The defendant denied the offence under caution. Today, she admits that she and another picked the victim’s pocket. 

9.  I have heard mitigation put forward on the defendant’s behalf.  I have been given the defendant’s age as 52, and according to the police records, the defendant has eight aliases.  She also has 14 convictions in Hong Kong.  They include theft and attempted theft offences. They also include immigration offences such as breach of condition of stay and illegally remaining in Hong Kong, as well as three previous convictions for a breach of a deportation order.  According to the records, her last conviction was in 2005, and she was deported again after her release from prison in May 2007.

10.  As for her personal circumstances, I have heard that She has been widowed for over 10 years, and she has two children of her own, including a 9-year-old.  Her oldest child has a 6‑year‑old, making her a grandmother.  She is also apparently financially responsible for nine nieces and nephews who are orphans. 

11.  In Manila, she works as a fruit vendor, and her average salary is approximate HK$3,000 a month. 

12.  Sadly for her children and those that rely on her, the defendant cannot say she had no idea how seriously the courts in Hong Kong would view and treat these offences, having committed them in the past.

13.  The defendant’s best mitigation is her plea of guilty today. 

14.  For Charge 1, the pick-pocketing offence, Court of Appeal has laid down guidelines in the authority of HKSAR v Ngo Van Huy, CACC 107/2004.  In that authority, the Court of Appeal considers what would be an appropriate starting point, as well as what aggravating factors would increase that starting point.  Briefly put, the Court of Appeal held that the basic starting point for a first time offender was 12 to 15 months’ immediate imprisonment.  Aggravating factors that can increase a starting point include a use of a weapon or sharp object; when the offence is committed in a crowded public place such as the MTR or racecourse; if the defendant acted in concert with others; and if the defendant and others came from overseas to commit crimes in Hong Kong.  This list of factors is not exhaustive. 

15.  Here I do find aggravating factors exist.  The defendant, I would find, has come from the Philippines to commit an offence in Hong Kong.  Secondly, the defendant did not act alone, she distracted the victim whilst the wanted person picked his pocket.  And thirdly, the location of the offence was an escalator of the Central MTR station, an obviously crowded place.

16.  For these three aggravating factors I find exist, I will add 2 months for each of those factors, therefore an additional 6 months.

17.  As for the starting point, the amount of money stolen was not insignificant, nor is the defendant a first offender.  I take a starting point of 18 months’ imprisonment and add the 6 months I consider appropriate for the aggravating factors.  Therefore I take a starting point of 24 months for Charge 1.

18.  For Charge 2, the defendant has committed this offence for the fourth time.  I have considered several authorities, including HKSAR v Tran Viet Thanh, CACC 54/2011, where three appeals from three different appellants were heard together by the Court of Appeal, and in that authority, the Court of Appeal reviewed the sentences for this offence. 

19.  I also took into account HKSAR v Pham Van Hung, CACC 14/2011.  I will take a starting point of 3 years’ imprisonment for Charge 2.

20.  Defendant, please stand up.  You have pleaded guilty, you are entitled to a discount of one-third for your plea.  After that discount is applied, Charge 1 is reduced to 1 year and 4 months’ imprisonment.  Charge 2 is reduced to 2 years’ imprisonment.  I take into account the totality principle, and I order that four months of Charge 1 be served consecutively to Charge 2 and the balance concurrently, therefore the total sentence for both offences is 2 years and 4 months’ imprisonment.