HKSAR v. ARLENE JOVER JUMUAD AND OTHERS

DCCC79/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 79 OF 2011

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REASONS FOR SENTENCE

1.  D1-D5 all came from Philipines. They all came to Hong Kong using various passports as visitors between 20 June 2010 and 25 November 2010. They were subsequently arrested in connection with the theft of diamonds during a jewellery exhibition respectively held at the Hong Kong Convention and Exhibition Centre in June and September last year.

2.  All the Defendants appeared before me on 3 March 2011 and pleaded guilty to their respective charges including “Conspiracy to steal” (C1&C2), “Making a false representation to an Immigration Officer” (C3-4 & C6-9) and “Breach of deportation order” (C5, C10 & C12).

3.  They all agreed to the amended summary of facts and each of the D was duly convicted of his/her respective charges, namely (C2-5) for D1; (C1-2 & C6-7) for D2; (C1-2 & C8-9) for D3; (C2 & C9) for D4 and (C1 & C11-12) for D5.

FACTS

4.  The stolen property in respect of C1 is a 18.20 carat of diamond (“SP1”) which was placed in a cupboard in the victim company’s booth. It was found missing after the owner of the company served a customer for 8-10 minutes. Upon checking the CCTV image, it was found that D5 opened the cupboard and took away SP1 when the owner was serving another customer. D2 was also captured by the same footage to be wandering outside the booth at the same time.

5.  The stolen property in respect of C2 is a necklace which contained 32.83 carats of diamonds (“SP2”). It was gone missing from a glass showcase. CCTV images revealed that in fact a male slid open the display cabinet, removed the necklace and handed it a female (D3). D3 put the necklace in her handbag and left. At the material time, D1 was talking to the salesperson and D2 and D4 were around in the vicinity. They all left after the theft was completed.

6.  After their arrest, the police checked with the immigration records and most Defendants (D4 excepted) were also found using false passports when they came to Hong Kong during this period. In addition, D1, D4 and D5 had previously been deported to Manila twice after they have served their previous sentences in Hong Kong and were thus also found to be in breach of their current deportation orders.

7.  During their video-recorded interviews, all the Defendants admitted they took part in the stealing of the diamonds in respect of their respective charges. They all received rewards in pesos from the mastermind afterwards.

BACKGROUNDS AND MITIGATIONS

8.  D2 and D3 each has a clear record in Hong Kong.

9.  D1 has 3 previous criminal records. Her 2^nd conviction is also a similar record of “Making false representation to an Immigration Officer” in 1998 and more importantly, she had a similar record of “Conspiracy to steal” in 2006 (DCCC1127/2005) for which she was sentenced to 2 years’ imprisonment respectively. This case is about D1 acting together with other defendants to commit pickpocketing and she pleaded guilty. She was first deported by the Immigration Authority following her 2^nd conviction in 1998. For reason best known to the prosecution, unlike D4 and D5, she was not charged with “Breach of deportation order” in DCCC1127/2005 but she was deported again to Manlia after she served her time in prison in 2007.

10.  D4 has 2 previous similar “Theft” records in 1997 and 1998 and he was sentenced to 10 months’ and 1 year imprisonment respectively. I was informed by his lawyer that the first theft conviction was in relation to pickpocketing while the 2^nd conviction was about theft in a jewellery shop. By his last conviction, he was also in breach of his first deportation order issued in 1998 following the first conviction and for this offence, he was given an additional 2 months’ imprisonment. D4 was deported again to Manlia in 1999 after serving a total of 14 months’ imprisonment.

11.  D5 has also 2 previous similar “Theft” records in 1997 and 1999 for which he was sentenced to 12 months’ and 6 months’ imprisonment respectively. After taking instruction, his lawyer confirmed that those two convictions were all about theft from jewellry shops. Similarly, by his 2^nd conviction, he was also in breach of his first deportation order issued in 1997 and was given an additional 9 months’ term. After serving his time, he was deported again to Manlia in 1999.

12.  In mitigation, I was told that D1 is now 45. She was married but her husband had passed away in 1994 already. She lives with her sons and daughters and she has to support the family alone as a single parent. She worked as a second-hand commodities dealer earning a monthly income of around HK$2,000. A letter of mitigation written by D1 was submitted to me for consideration. She would never come back to Hong Kong, she said.

13.  D2 is 43 years of age. She is single but she has 2 sons and 2 daughters who live in Manlia and the youngest child being only 2 years old. She worked as a saleslady in a flower shop and earned a monthly salary around HK$500. She produced to me a copy of a medical report obtained through e-mail certifying that her husband had undergone a hip replacement surgery back in March 2010. According to her counsel, the whole operation cost was over $200,000 peso.

14.  D3 is 46 years old. She is now divorced but in her previous two marriages, she has 4 sons and 6 daughters all live with her in Manlia. Most of the children are still under 18 with the youngest one being only 6. She also needs to support her father who is suffering from bone cancer. She was a saleslady by occupation and earned around HK$500.

15.  Counsel for both D2 and D3 submitted that these two ladies come from a humble background with huge financial burden. They were therefore very vulnerable and easy to be succumbed to the temptation to commit the present offences.

16.  D4 is 51 and is presently divorced. He resided with his family members and operated a street stall selling detergents back in Philippines earning an income of about HK$1,300 per month. His counsel submitted that the offence was not very sophisticated as they even were not aware that their actions were captured by the CCTV camera.

17.  The age of D5 is a bit of mystery. According to the top part of the antecedent statement, he is 65 now but according to the latest instruction he gave to his lawyer, he should be 71. The reason I suspect is that he had come to Hong Kong using different names and identities in the past. In any event, I prepare, for the purpose of this proceeding, to treat him as a person of advanced age. He is married and he lives with his family in Philippines. He operated a heavy equipment business and his monthly salary is around HK$2,000. D5 claims to be in poor health and he suffers chronic illness for diabetes, hypertension and tuberculosis. His counsel said his role was minor and he only received $50,000 peso which was only 1/3 of what he was promised as the reward.

SENTENCING CONSIDERATIONS

Starting point

(1)  Conspiracy to steal (C1-C2)

18.  Of all the 12 charges, the two “Conspiracy to steal” charges are obviously most serious of all. SP1 and SP2 could not be recovered. The value of SP1 and SP2 is substantial. It is agreed that the value of the two pieces of diamonds is respectively about HK$2,730,000 and USD$120,000 (HK$936,000 approximately). The thefts took place during the jewellery exhibition held in the Convention and Exhibition Centre. No doubt, the Defendants were making use of the opportunity when the exhibition hall was so crowded with local and oversea buyers and the stall operators were busy serving their potential customers.

19.  The conspiracy involved as it were, considerable planning and sophistication. According to their own admissions to the police, the Defendants were recruited by a syndicate in Philippines to come to Hong Kong to commit the offences. In order to gain entry into the exhibitions, they posed themselves as buyers and produced false business cards for registration purposes at the entrance. After entering into the exhibition, they then went along according to their plans. Some were responsible for distracting the salespersons by talking to them while some were responsible for stealing and hiding away the stolen property at the same time. They later went back to Philippines and received money rewards for their criminal enterprise. The two victim companies were all oversea companies participating in the exhibitions. The reputation of Hong Kong as an International Trade and Exhibition Centre is seriously jeopardized by their criminal acts. These group of Defendants are no doubt professional thieves and it is clear that they came to Hong Kong with the sole purpose of committing crime and make quick profits from criminal ventures. In HKSAR v Hong Chong-chi [2002] 1 HKC 295, the Court of Appeal made it clear that

“…anyone who acts in this way, to undermine the laws in Hong Kong, deserves no sympathy.”

20.  I therefore consider that a deterrent sentence should be imposed in order to discourage like-thinking criminals from Philippines or indeed from any far-flung jurisdictions from coming to Hong Kong to commit such offences especially during the time when exhibitions are on-going.

21.  There was numerous jewellery fairs held each year in Hong Kong. Incidentally, over the years, there were also many reported cases of theft of jewels during the exhibitions. In order to have a better understanding of the scale and the sentences of this types of cases, I therefore asked the prosecution to supply to me the court results of all theft-related cases that took place in jewellery exhibitions in Hong Kong for the past 10 years for consideration. As it turns out, There were a total of 14 such cases and the present case is by far the most serious case of the kind in terms of the value of the stolen properties.

22.  According to the information supplied, in one of those cases, DCCC 312/2005, the court adopted a 3 year starting point for the sentence of a conspiracy to steal a necklace valued at HK$1.2 million involving four Colombia and one Australian defendants.

23.  Not many of these cases went up to appeal. However, in HKSAR v Law Ng-tak CACC 204/2006, a Chinese judgment, the stolen property was a 4 carat of diamond valued at around HK$210,000. The trial judge adopted a starting point of 3 years and 9 months but the Court of Appeal considered that the suitable starting point should instead be 2 years and 9 months.

24.  The value of SP1 and SP2 far exceeded the stolen property mentioned in the case of Law Ng-tak (supra.)but as always, the value of the stolen property, though important, is not the only factor determining the proper sentence. Give the facts of the case and the aggravating factors mentioned, I consider that a starting point of 5 years for C1 and 3 years for C2 is appropriate.

25.  I pause here to observe that as the criminal records reveal that D1 has one previous record of “Conspiracy to steal” while D4 and D5 each has 2 previous records of “theft”, it goes to show that these Defendants’ propensity to commit thefts whenever they can find their ways to Hong Kong is obviously so great and clearly, the sentences they received in the past were insufficient to deter them. For the reasons which I will later also relied in the dealing with sentences on “Breach of deportation order” relating to exactly these three Defendants, I am going to enhance their starting points on each “Conspiracy to theft” charge by 6 months.

26.  As a result, while the starting points for D2 and D3 on C1 and C2 are 5 years and 3 years respectively, the starting points for D1, D4 and D5 on C1 and C2 are 5 ½ years and 3 ½ years respectively.

(2)  Making false representation to an immigration officer (C3-C4, C6-C9 & C11)

27.  The present case involves individual defendant using false passports and making false representation to an immigration officer.

28.  In HKSAR and Cortez Emily Bisoy [2002] 2 HKLRD 762, a Filipino domestic helper used a false passport to enter Hong Kong and subsequently used the same false passport to apply for an extension of stay. She pleaded guilty to two offences of making false representation to an immigration officer. Deputy Judge McMahon (as he then was) held that 12 months’ imprisonment for each offence was appropriate.

29.  Similarly, I consider that a starting point of 18 months is appropriate for these offences.

(3)  Breach of deportation order (C5, C10 & C12)

30.  The charge is always serious than the other immigration offences. It should be recognised as aiming to prevent the unlawful return to, and presence in, Hong Kong of someone who has no right to enter, nor any right of abode, and to punish a convicted offender who defies an individualised prohibition. What is more, the three Defendants in this case (D1, D4-5) deliberately returned to Hong Kong, in what can only be described as flagrant flouting of a direction properly made in respect of them, not to earn just a living but in order to commit serious crimes. According to the case authorities, sentence for this offence have markedly increased in the past few years. In the Court of First Instance, it was held that the offence is even more serious than unlawful landing and remaining and 18 months’ imprisonment after a guilty plea is appropriate: see HKSAR and Cortez Emily Bisoy (supra.). In HKSAR v Gabriel Malou Latin, HCMA 716/2004, it was further held that the starting point is 27 months for first offence, and 30 months for second offence. For this offence, D1 is a first offender whilst D4 and D5 are both repeated offenders. As a matter of fact, D1 also came back to commit her last offence in 2005 but for some reasons, she was not charged for breach of her deportation order. For the present purpose, I consider that it is only right that I shall also treat her as a persistent offender like D4 and D5. The principle relating to persistent offenders requires that the sentences of these three Defendants on this charge should be enhanced. The principle was not that these offenders are being sentenced at a higher level on the basis of their prior records, but that their sentences should be enhanced on the narrower basis that their prior histories in repeatedly committing a certain category of offence demonstrated that the personal deterrence factor of previous sentences had been insufficient to deter them from committing that type of offence again. (HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 applied)

31.  Accordingly, I consider that in C5, C10 and C12, the starting point should be 30 months for D1, D4 and D5.

Mitigation

32.  Apart from their guilty pleas, I do not see any other mitigating factors which would warrant a further reduction in sentences. Their individual family circumstances virtually played no part in mitigation especially in serious offences. These are all matters which the Defendants were aware when they decided to come here and committed the crimes. It is a price they must pay for their crimes. In the case of D5, advanced age and ill-health are not in principle mitigating factors. However, the court was entitled to take advanced age into account where it thought appropriate, and as an act of mercy to use it to discount the sentence in exceptional circumstances. Here D5’s illness was not particularly bad for a person of his age and is treatable in prison. Despite his age, D5 chose to ignore the prohibition issued by the Hong Kong authority and took the risk and returned here to take part in the stealing. Given his propensity to commit offences of this sort, questions of deterrence outweighed considerations of mercy. (see HKSAR v Tam Yuen Tong [2007] 1 HKLRD 894)

Individual sentence for each Defendant after 1/3 discount

D1–	C2 (28 months)	D2-	C1 (40 months)	D3-	C1 (40 months)
	C3 (12 months)		C2 (24months)		C2 (24 months)
	C4 (12 months)		C6 (12 months)		C8 (12 months)
	C5 (20 months)		C7 (12 months)		C9 (12 months)
D4-	C2 (28 months)	D5-	C1 (44months)
	C10 (20 months)		C11(12 months)
			C12(20 months)

33.  As C1 and C2 are both conspiracy charges, the gravamen of the two offences must be the Defendant’s agreement to take part in the unlawful acts. While I accept that individual defendant was assigned and played different roles in the course of the thefts, these are matters which are more relevant if I am dealing with a substantive offence. Here, in the context of a conspiracy charge, I judge that their criminality are the same within the same charge so I do not seek to distinguish their roles or sentences on individual charge.

34.  Before I arrive at the final sentence, the principle of totality dictates that I review the overall sentences and consider further adjustment if necessary. In the end, after first adjusting the sentences on the conspiracy and the immigration offences of individual defendant, I further reduce the sentence on immigration offences by half or nearly half so that each defendant in effect only needs to serve the remainder of the sentence on top of the sentence on the conspiracy charges.

Total sentence for each Defendant

D1

(i)  sentences on C3 and C5 to run concurrently (i.e. 20 months);

(ii)  4 months of C4 to run consecutively to (i) (i.e. 24 months);

(iii)  12 months of (i) – (ii) to run consecutively to the sentence on C2;

Total:  40 months’ imprisonment

D2

(i)  9 months of C2 to run consecutively to sentence on C1;

(ii)  3 months of C6 to run consecutively to sentence on C7 (i.e. 15 months);

(iii)  7 months of (ii) to run consecutively to (i);

Total:  56 months’ imprisonment

D3

(i)  9 months on C2 to run consecutively to sentence on C1;

(ii)  3 months of C9 to run consecutively to sentence on C8 (i.e. 15 months);

(iii)  7 months of (ii) to run consecutively to (i)

Total:  56 months’ imprisonment

D4

(i)  10 months of C10 to run consecutively to sentence on C2

Total : 38 months’ imprisonment

D5

(i)  sentences on C11 and C12 to run concurrently (i.e. 20 months)

(ii)  10 months of (i) to run consecutively to sentence on C1

Total:  54 months’ imprisonment