HKSAR v. BELVES CESAR JAMBALOS (also known as ALCOLEA FRANCISCO JR SUYO and ALCOLEA FRANCISCO JR. SUYO)

DCCC 663/2017

[2018] HKDC 298

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 663 OF 2017

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

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

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

REASONS FOR SENTENCE

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

1.  On 5 January 2018, the defendant pleaded guilty before me to a charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (1st charge) and four charges of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210 (2nd charge, 3rd charge, 4th charge and 5th charge). He also pleaded guilty to a charge of breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115 (6th charge).

2.  Defendant agreed to the Summary of Facts and was convicted of the six charges.  According to the Summary of Facts, a Filipino female (PW1) found her purse missing at around 3.15 pm on 18 April 2017 shortly after she last checked.  Inside the purse, there were, inter alia, a Hongkong Bank ATM card, a Citibank Visa card, American Express Cathay Pacific card and a Hongkong Bank Platinum Visa card and American Express Platinum card. 

3.  Meanwhile, after PW1 reported the missing cards, she was notified that her stolen Citibank and American Express credit cards were being used in “Bonjour Cosmetic Wholesale Centre Limited” near Tai Yuen Street, Wanchai.  PW1 reported to police and was later accompanied by police to the vicinity of Tai Yuen Street and Johnston Road in Wanchai.

4.  At around 4 pm, the defendant was located at “Sa Sa Cosmetic Company Limited” in Johnston Road.  Four credit cards of PW1, namely, the Citibank Visa card, American Express Cathay Pacific card, Hongkong Bank Platinum Visa card and American Express Platinum card were recovered from the defendant. 

5.  Defendant was subsequently arrested.  Inquiries revealed that defendant made earlier purchases at the said Bonjour Cosmetic Wholesale Centre Limited using the said Citibank Visa card for $4,307.50 worth of goods, including 10 perfumes and one plastic bag, and using the American Express Cathay Pacific card for $1,368.50 worth of goods, including eight health products and one plastic bag.

6.  Defendant had earlier made two transactions at the said Sa Sa Cosmetic Company Limited using PW1’s Hongkong Bank Platinum Visa card purchasing $4,426 worth of goods, including five health products, and using the said American Express Cathay Pacific card purchasing $2,989 worth of goods, including four hand creams, five perfumes, one box of health product and one plastic bag.

7.  The products and sales slips were seized.  Defendant was found to have travelled to Hong Kong on 11 April 2017 using a Filipino passport under a different name although he was the subject of a deportation order dated 8 September 2016 under a different name. 

8.  Under caution, defendant said he picked up a purse and stole four credit cards from it.  He then went on shopping at the two stores aforesaid in the vicinity.  He apologised and asked for a chance.  He also explained that he had two different passports under two different names as he was adopted by different families previously.  He admitted he had two Filipino passports under different names and with different dates of birth.  Defendant admitted that he was aware of the deportation order that he was not allowed to enter Hong Kong. 

Previous convictions

9.  Defendant had two previous convictions similar to Charges 2 to 5 when he was sentenced to 10 months’ imprisonment on each charge to run concurrently. 

Mitigation

10.  Defendant is aged 64, married with two daughters.  He had received upper secondary school education in the Philippines and was unemployed at the time of offence.  He was discharged from Hong Kong prison on 20 September 2016 and was deported on the same day.  He said he came to Hong Kong on 11 April 2017 for shopping cellphones and other goods for resale at a higher price on return to Philippines. 

11.  It is also submitted on his behalf that his wife was suffering from lung cancer and had only six to eight months to live.  A medical certificate dated 9 May 2017 was submitted in that regard.  It is, however, admitted by the defendant that he was aware of the illness of the wife before he came to Hong Kong.

12.  Defendant’s solicitors ask for leniency on behalf of the defendant by reason that the defendant had a timely guilty plea, and he was fully co-operative with the police upon his arrest, that he had returned all goods purchased, that he vowed not to come to Hong Kong again.  

13.  In the course of mitigation, Mr Wong on behalf of the defendant, handed to court several letters.  Letter from his wife, which is actually addressed to the defendant’s solicitors, said that in view of the fact that she only had a few months to live, she would like to die in the arms of the defendant.  There was also the letter from defendant’s daughter saying that defendant was a good man and a loving father and that she hopes that the defendant be released before her wedding on 17 February 2017 to walk her down the aisle.  There was also the letter from the parish priest of the church that the defendant attended, praising the defendant as an active member of the church, an excellent role model.  There was also a letter from the Office for Senior Citizens Affairs in City of Valenzeula saying that defendant is a respected person of good moral character that he is an honest, considerate and supportive individual.

14.  Mr Wong, solicitor for the defendant, urged this court not to enhance the 36 months’ sentencing starting point despite defendant’s previous similar convictions.  He also asked that this court should pass concurrent sentences on all charges.  He said that defendant committed the other charges, meaning charges apart from the breach of deportation order charge, whilst he was in breach of the deportation order.  He asked this court to consider the totality principle.

15.  Before sentencing, I have considered all being said on behalf of the defendant by Mr Wong, including of course the medical certificate and all mitigation letters.  These are however very serious offences of which the defendant was convicted.  I must admit that the most forceful mitigation done on behalf of the defendant was his timely plea.  As for the plea by the wife, it was the defendant who chose to come to Hong Kong, knowing the illness of the wife.

Sentencing

1st Charge

16.  Coming to the sentence of the 1st charge of theft, this is a charge of theft by finding.  The appropriate sentencing starting point is 6 months, and by reason of the defendant’s guilty plea, full one-third sentencing discount is given.  Defendant is therefore sentenced to 4 months’ imprisonment on Charge 1.

2nd, 3rd, 4th and 5th Charges

17.  I now turn to sentencing of the 2nd, 3rd, 4th and 5th charges.  I have been referred by Mr Wong for the defendant to the Court of Appeal case of Tandon William Chaing CACC 404 of 2012 where the court approved sentencing starting point of 3 years’ imprisonment adopted in the case of Kwan Po Keung [2012] 2 HKLR 12 for the unauthorised use of a credit card belonging to another on a single occasion to obtain jewellery and watches to a total value of $56,116.

18.  In passing sentences on these charges, I must take into consideration the factors relevant to sentencing for credit-card fraud as set out by the Court of Appeal in the case of R v Chan Sui To [1996] 2 HKLR 128.  These factors are not exhaustive but they give assistance to this court. Again in the case of HKSAR v Tu I Lang CACC 464 of 2006, it is said by the Court of Appeal that where the facts of the offence point to a small unsophisticated operation involving one or a few forged credit cards uncomplicated by other evidence materially linking to the offender to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate.

19.  In the case here, the amount involved in each of the four charges is relatively small.  This is of course only one of the factors to be considered. On the other hand, the defendant who had just been released from prison less than seven months ago now reoffends and was convicted of similar charges.  It is noted also that this is a theft-by-finding case and there is no evidence that the operation is a sophisticated one.

20.  Considering all the circumstances of this case, I accept that 3-year imprisonment is an appropriate starting point for each of the four charges involving simple cases of credit-card fraud where stolen genuine credit cards are used to commit the offences.  The case relied on is HKSAR v Lam See Chung, Stephen [2013] 5 HKLR 242.  After taking into consideration the guilty plea, the sentence in each of the four charges is reduced by one-third to 24 months each.  As these offences were all committed within a very short period of time on the same day and they were all of the same nature, the sentence for each of these charges shall run concurrently with each other.

21.  Likewise, the commission of the 1st charge offence is indeed the earlier stage of the commission of the same criminal act and is closely connected to the 2nd to 5th charges.  I therefore order that the sentence of the 1st charge shall also run concurrently with that of the sentences from Charges 2 to 5.

6th Charge

22.  I now turn to the sentence for the 6th charge, ie breach of deportation order.  In the case of HKSAR v Cortez Emily Bisoy, HCMA 457/2002, it is said by Deputy High Court Judge McMahon (as he then was) that:-

“The legislature intended the offence of breach of a deportation order to be a serious offence and further, a more serious offence than unlawfully remaining in Hong Kong is perhaps evident from the maximum penalty being one of 7 years’ imprisonment as compared to the maximum sentence of 3 years’ imprisonment for unlawfully remaining in Hong Kong. That is sensible when it is remembered that the breach of a deportation order requires a deliberate circumvention of an order directed at the offender personally. In my view, a sentence of 18 months’ imprisonment after plea for such an offence cannot be criticised.”

23.  Before he arrived at such decision, he had considered cases of HKSAR v Luu Dinh Huy, HCMA 690/1997, HKSAR v Do Thi Hue,  HCMA 873/2001 and the case of HKSAR v Nguyen Chi Trung also known as Dong Van Thanh,  HCMA 1095/2001.  The appropriate sentence on this charge after his timely plea is therefore 18 months.

24.  The nature of 6^th charge is entirely different from the other charges and it arose out of facts unrelated to the other charges.  The sentence of 6^th Charge should run consecutively with that of the other charges.  However, considering the totality principle, the circumstances of this case and in order to achieve a total sentence which is just and proportionate to his culpability, 6 months’ imprisonment of the 6th charge shall run concurrently with the sentence in the other charges.  The rest of the sentence for the 6th charge shall run consecutively with the sentence of the other charges, making the total sentence 3 years’ imprisonment.