HKSAR v. ROMANO DARWIN LONSAGA AKA AND OTHERS

DCCC 186/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Criminal Case No. 186 of 2009

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REASONS FOR SENTENCE

1. The defendant faces 8 charges.  Charges 1 and 3 are theft, contrary to section 9 of the Theft Ordinance, Cap 210.  Charges 2 and 7 are attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance and section 159G of the Crimes Ordinance, Cap 200.  Charges 4 to 6 are obtaining property by deception, contrary to section 10 of the Theft Ordinance while Charge 8 is breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115. The particulars of the offences are set out in the charge sheet and the court is not going to repeat them here now.

2. The defendant pleads guilty to all the charges.

Facts Admitted

Charges 3

3.  On 6.11.2008 the defendant picked the wallet inside a bag carried by Mr YIP Tai Chee (“PW1”) at Causeway Bay MTR Station.  The wallet contained 6 credit cards.

Charge 4

4.  The wallet was later found at SOGO Department Store and a China Construction Bank MasterCard numbered 5522-4572-0236-1010 in name of Ye Di Ci (Putonghua romanisation of PW1’s name) (“Card A”) was missing.  Card A had been used to purchase of 1 bottle of Martini Sparkling and 2 bottles of Hennessy XO in sum of $2,765 at the SOGO Supermarket.  The credit card payment slip and receipt of this transaction were found inside the wallet.

Charge 5

5.  Card A had also been used to purchase 8 bottles of perfume in the total sum of $7,360 on 6.11.2008 at the Hermes Shop inside SOGO.

Charge 6

6.  A purchase of 3 suitcases in the total amount of $5,020 was successfully made at the North Face Shop inside SOGO on 6.11.2008 by means of Card A.

Charge 7

7.  The defendant tried to purchase 12 Polo shirts in the total amount of $8,870 at the Lacoste Shop inside SOGO on 6.11.2008 by using Card A, but the salesperson of the shop suspected the card to be counterfeit because the defendant was a Filipino while the credit card bore a Chinese name.  She informed the security office of SOGO and the defendant was arrested.  A black suitcase of North Face, 1 bottle of Martini Sparkling, 2 bottles of Hennessy XO and 8 bottles of perfume of Hermes were recovered from the defendant.

Charges 1 and 2

8.  The defendant picked the purse of Madam Kazue Hirata inside SOGO on 26.9.2008 during the latter’s visit in Hong Kong.  The purse contained the items particularised in Charge 1 which included 2 credit cards.

9.  The defendant tried to use the 2 credit cards to purchase 2 pieces of crystal in the total amount of $13,650 at the Swarovski shop in Causeway Bay, but he fled, leaving the credit cards behind, when the saleslady asked him for his birthday and residential telephone number for verification.

Charge 8

10.  The defendant was deported from Hong Kong on 16.2.1999 under the names of Wilfredo C Crudo and 4 other aliases and was prohibited from being in Hong Kong after that date.  He, however, entered Hong Kong by means of a passport in the new name of Romano Darwin Lonsaga from Macau on 25.9.2008.  He left Hong Kong for Macau on 5.10.2008 and returned again on 6.11.2008. 

Criminal Record

11.  The defendant has 6 previous convictions of which 4 were offences of dishonesty which included 1 theft.

Mitigation

12.  The defendant is aged 62 and is married with 5 adult children.  Counsel representing the defendant points out in mitigation that the defendant pleads guilty and was cooperative with the police.  Without his admissions to Charges 1 and 2 it would have been be difficult for the police to make out the case against the defendant because there was no identification of him.

13.  The defendant came back to Hong Kong on 25.9.08 because he did not have any contact in the Philippines and it was difficult for him to get a job there.  The passport he used to enter Hong Kong had been legitimately obtained by him from the Philippine authorities.

14.  Counsel adds that the defendant had only made fraudulent use of one of the credit cards he had stolen.  The total amount of goods purchased was $29,035 and was by no means substantial.  Almost all of them were recovered, except 2 suitcases which cost about $3,600.  Counsel asks the court to consider the totality principle in sentencing and to be lenient to the defendant.

Sentence

15.  The defendant stole the wallet and purse of the victims in the present case by way of pick pocketing, an offence which has been described by Yeung JA in HKSAR v Tan Hon Sheng CA 238/2005 as “both serious and nasty, as it not only causes financial loss, but could also result in grave inconvenience to the victim”.  There are ample authorities saying that the normal sentence in case of a guilty plea is 12 to 15 months imprisonment.

16.  One of the victims in the present case was a tourist in Hong Kong and both incidents of theft occurred in Causeway Bay which is a place frequented by tourists.  The thievish act of the defendant would surely affect the reputation of Hong Kong as a shopping paradise and might even deter people from visiting Hong Kong.  This adds gravity to the offences.

17.  The defendant has a number of previous convictions of dishonesty.  It is rightly pointed by the defence counsel that the defendant had already received punishment for these offences.  The fact that the defendant returned to Hong Kong and committed similar offences again must, however, show that he had not learnt any lesson despite the punishment imposed.  The court must take this into consideration in determining the sentence in the present case.

18.  The defendant himself is a visitor in Hong Kong.  The court, however, fails to see any reason why he should be in Hong Kong apart from coming here specially to pick the pockets of other people.  He did this despite being the subject of a deportation order from Hong Kong.  He also made use of the credit cards in the purse or wallet he had picked to go on a shopping spree.  The offences were committed within a very short time.  All these no doubt add further gravity to the case.

19.  For the offence of breach of a deportation order there are authorities saying that a term of 2 years imprisonment for a first offender is appropriate after a guilty plea.

20.  The court of course bears in mind that the defendant appeared to be a “lone ranger” in the commission of the offences and that some of the properties of the crimes have been recovered.

21.  Having considered all the relevant circumstances the court sentences the defendant to 18 months imprisonment for each of Charges 1 and 3, and 2 years imprisonment for Charge 8.  As for Charges 2, 4, 5, 6 and 7 the court adopts a starting point of 2½ years imprisonment for each of them.  Giving credit for the guilty pleas and the cooperation the defendant gave to the police the court sentences him to 18 months imprisonment for each of these charges.

22.  Taking the nature of the case and the totality principle into consideration the court orders the sentences of Charges 1 to 7 to run concurrently but with 12 months of them to run consecutively to that in Charge 8, making a total term of 3 years imprisonment.