HKSAR v. MANGASIL JUVY SANTOS AND OTHERS

DCCC 926/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 926 OF 2016

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Reasons for Sentence

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1.  The three defendants have pleaded guilty to their involvement in various thefts that occurred at Zara in Central, and the 3rd defendant has additionally pleaded guilty to a charge of breach of deportation order.

2.  Initially, the three defendants were arrested as a result of their involvement in an attempted theft on 9 June 2016 at Zara in IFC Mall in Central District, and that is the 2nd charge on the indictment.  The defendants were seen by a party of police officers pretending to be customers in that store, but were in fact operating so as to attempt to steal from the handbag of a person in the ladies’ garments section.  The defendants were kept under observation, and the operandus seemed to be that the 1st defendant was to go to the bag and extend her hand towards it, and the 2nd and 3rd defendants were to take hangers from garments from other racks to protect her from being seen.

3.  Police intervened to arrest the defendants, and they were all cautioned.  The 1st defendant at the time said she tried to steal, but was unsuccessful. 

4.  The arrests led to the defendants being taken back to the Central Police Station.  At that time the 1st defendant was identified as being involved in an earlier theft that occurred again in IFC Mall in Central at the shop, Zara.  That had occurred on 1 June 2016, when a lady had entered that shop, and while she was there, her Apple iPhone, an item valued at $6,450, had been stolen, and there was a CCTV recording which was perused.

5.  The 1st defendant was identified from that recording.  The 1st defendant, when challenged with this, under caution, admitted it and told she had stolen the phone for money with another person called Cuesta.  The 2nd defendant can also be seen in the CCTV pictures of the offence assisting the 1st defendant in that offence by sheltering her from view, and he admits that offence today.

6.  The final offence concerns the 3rd defendant. That is, his breach of a deportation order that was made on 16 February 2000, and his entry into Hong Kong on 7 June 2016 constituted the fifth time he had come to Hong Kong in defiance of that original order.

7.  The antecedents of the three defendants are admitted.  The 1st and 2nd defendants are of clear record, whilst the 3rd defendant has some previous history of offending in Hong Kong.

8.  As far as the 3rd defendant is concerned, he has seven previous court appearances and a number of convictions both for theft and for breach of deportation order, including what is described as theft by pickpocketing.  The most recent was in 2011, when, for an offence of theft, he was sentenced to a term of 20 months’ imprisonment, and for an offence of breach of deportation or expulsion order was sentenced to 28 months’ imprisonment.  I understand, and it would appear from the record, that these are sentences that were imposed after a plea of guilty.

9.  Turning to the background disclosed in the antecedents reports, the 1st defendant, a lady aged 44 years from the Philippines, educated to Primary 6 level in Manila, had worked as a vendor of vegetables for some 18 years.  This had been the only job she had had.  She is a single mother, has two daughters who are aged 18 and 17 and a son aged 16. They all live in Manila in the Philippines.

10.  The 2nd defendant in this case is aged 40 years.  He has worked in the Philippines as what is called a freelance job taker for 20 years.  That was his only job.  As far as medical conditions, he is said to be diabetic.  He is divorced, but has four daughters aged between 12 and 4, and two sons, aged 17 and 13, all in Manila in the Philippines.

11.  The 3rd defendant is the oldest of the group; he is aged 58.  He has worked as a farmer for some 18 years.  He was discharged from prison in Hong Kong in July 2013.  He was born in Bohol.  He is divorced; has a daughter, and four sons ranging between the ages of 32 and 19.  They all live in Manila in the Philippines.  I have already set out his previous conviction history in Hong Kong which shows that he has been coming to Hong Kong since 1995.

12.  As far as mitigation, I am generally asked to approach the case in line with the authority of Ngo Van Huy and to take account of the remorse shown by the defendants by their plea of guilty, and also to consider the question of overall totality when setting the final sentence.

13.  The approach to sentence is set out quite clearly by authority, and the most recent authority on the approaching cases that involve the offence of theft in its form of shoplifting is that of Ngo Van Huy.  This case obviously applies to all three defendants on both charges.  The case of Ngo Van Huy posits a starting point for sentence of between 12 to 15 months’ imprisonment.  That presumably would be for a person of clear record after trial.

14.  There are a number of aggravating factors.  The aggravating factors which appear to exist in this case and are common to the three defendants are the location, being what is described as a location the public would normally have access to in large numbers, such as the department store Zara in IFC, a popular clothing store; secondly, that the defendants acted in concert together, which makes it more serious; and thirdly, that they had come to Hong Kong to commit the offence.  They have all come here from the Philippines, it would appear, specifically to commit these offences.

15.  In determining the approach, for the original starting point of between 12 to 15 months’ imprisonment, the court should look at the nature of the offence and the degree of professionalism and suchlike involved in the offence.

16.  As far as the 3rd defendant is concerned, there is an added factor in his case, and that is the fact that he has a number of previous convictions, which shows that the previous sentences of imprisonment imposed upon him have failed to deter him from continuing to commit offences and continuing to come to Hong Kong to commit offences.  He was released from prison most recently in July 2013.

17.  As far as the 3rd offence that the 3rd defendant faces alone - that is, the breach of deportation order - there are guidelines sentences from the Court of Appeal in respect of this.  The most recent approach is in the case of HKSAR v Joned Asri CACC 345/2012, [2013] HKCA 189, which deals with a case of multiple breaches of deportation order.  In that case, the defendant had been involved in multiple breaches of deportation order, and the court said in paragraph 19:

“On the facts of the present case, given the nature and seriousness of the offence and the criminality involved, we take the view that the enhanced starting point...”

which they described:

“...ought to have flattened out after the fifth breach; that is, at 42 months’ imprisonment, which was the enhanced starting point adopted by this court in Pham Van Hung in respect of a fifth breach.”

18.  And in fact one can see from the criminal record of the defendant that that appears to be the approach that was taken in 2011, and what was then, I believe, must have been his fourth breach, where after plea, the sentence was one of 28 months’ imprisonment, which presupposes a starting point of 42 months’ imprisonment.

19.  Applying these approaches to the individual defendants as we find them in court today, it appears to be that in respect of the 1st and 2nd defendants in respect of their offences - those are the theft and attempted theft offences on Charges 1 and 2 - the starting points should be as follows.  I consider the original starting point is one of 15 months’ imprisonment, and there are three aggravating factors.  That leads to a starting point on each charge of 24 months’ imprisonment.

20.  The defendants are entitled to a deduction of one‑third for their pleas of guilty.

21.  For the 1st defendant, on the 1st charge, the sentence is 16 months’ imprisonment, and for the 1st defendant, on the 2nd charge, a sentence of 16 months’ imprisonment.

22.  For the 2nd defendant, on the 1st charge, a sentence of 16 months’ imprisonment, and for the 2nd defendant, on the 2nd charge, a sentence of 16 months’ imprisonment.

23.  Those offences were committed on different dates, so can be served consecutively, or partly concurrently and partly consecutively.  I must have regard to what is described as overall totality of sentence to reach the correct overall sentence for their pattern of offending.

24.  I consider that in respect of these defendants, that in respect of the 2nd charge that they face, that should be served 8 months consecutively to the 1st charge, and the balance concurrently.

25.  That leads to an overall total sentence for the 1st and 2nd defendants on the charge that they face of 24 months’ imprisonment.

26.  Turning to the 3rd defendant, he faces the 2nd charge of attempted theft.  My approach to sentence would be, again, to take a starting point of 15 months’ imprisonment; add to that the three identified aggravating factors; and then, for the failure of sentencing in the past to deter, to add an additional 6 months’ imprisonment.

27.  That leaves a starting point of 30 months’ imprisonment.  After deduction for plea of guilty, that results in a sentence of 20 months’ imprisonment, which again I notice is the same as the sentence in 2011.

28.  In respect of the 3rd offence he faces, I follow the approach set out in the case I earlier cited, taking a starting point of 42 months’ imprisonment, reducing that to 28 months’ imprisonment for the defendant’s plea of guilty.

29.  Again, these sentences can be served consecutively to each other, as they are separate offences, or partly consecutively and partly concurrently.

30.  What I shall do is order that as far as the 2nd offence is concerned, 10 months of that will be served concurrently to the 3rd offence, and the balance consecutively.

31.  That leads to an overall sentence of imprisonment for the 3rd defendant of 38 months’ imprisonment.

32.  Those are my sentences.