HKSAR v. Tadeo, Leovie Saclapuz

HCMA 406/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 406 OF 2015

(ON APPEAL FROM KCCC 1502 OF 2015)

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JUDGMENT
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1.The appellant pleaded guilty to two charges before the Principal Magistrate[1]. The first charge was that of theft, contrary to section 9 of the Theft Ordinance, and the second charge was that of breach of a deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115.

2.She was sentenced to 8 months’ imprisonment on Charge 1 and 15 months’ imprisonment on Charge 2.  Four months of the first charge was to be served consecutively to the second charge, making a total of 19 months’ imprisonment. 

3.The appellant now appeals against her sentence.

Facts

4.On 28 April 2015, the appellant was effectively caught red-handed pick-pocketing a wallet from a rucksack of a female at the platform of the Mongkok MTR Station in Mongkok.  She was arrested and upon a fingerprint matching, she was found to be subject to a deportation order under the name of DANDOMANESO Ginalyn May Aguilares since 11 March 2011.  The deportation order was subject for life.  At the time, she was briefed and understood the content of the deportation order.

5.However, despite the deportation order the appellant entered Hong Kong with a Filipino passport under another name of Tadeo Leovie Saclapuz on 28 April 2014. 

Grounds of appeal

6.The appellant’s ground of appeal against her sentence is that her sentence was too severe.  In her submissions before me today, she has repeated what was said before the magistrate and they were, more particularly, to the effect that she is a single mother of six children who are in the Philippines and one of them suffers from a severe medical condition, which I understand to be cerebral palsy, since birth.  She has considerable financial pressure to provide for the medical expenses of her child.  Her two youngest children, she tells me today, aged 7 and 10, are not able to go to school as no one is supporting them.  She asks that she be given an early release so as to enable her to go back home to care for her children as soon as possible.  She promises never to return to Hong Kong.

7.Her daughter has written to this court begging for leniency for her mother.  She says they are in dire straits in the Philippines, living without their mother.  She is begging and pleading for her mother to be released so that she can go back and care for them.  The daughter has also attached some medical documents and a photograph of the appellant’s daughter diagnosed with the permanent medical condition, lying in a hospital bed attached to an intravenous drip.

8.Effectively, the appellant is asking this court to reduce her sentence on humanitarian grounds.

Reasons for sentence

9.When sentencing the appellant, the magistrate considered her background and family plight fully.  The appellant is aged 39. She has one previous conviction in Hong Kong in 2010 for which she was sentenced to 9 months’ imprisonment for an offence of attempted theft. 

10.The magistrate, having taken into account the difficulties of her family plight and financial constraints, considered that these were in existence at the time the appellant committed the present offences and yet the appellant had decided to take a chance.  He therefore did not offer any discount in respect of her difficulties.

Discussion

11.For the pickpocketing charge, the magistrate referred to the guidelines laid down in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  It is clear that the starting point of 12 to 15 months’ imprisonment is the starting point for first-time offenders and not a suspended term of imprisonment.

12.In respect of the theft charge, the appellant has a previous similar conviction.  The magistrate was in fact lenient to take a starting point of 12 months as the appellant was not a first-time offender. In adopting 12 months as the starting point, he reduced that to 8 months given her plea of guilty.  In the circumstances there is no merit in reducing that term of imprisonment. 

13.In respect of the second charge, the magistrate referred to the case of Cortez Emily Bisoy, HCMA 457/2002, where the court reviewed authorities and upheld a sentence of 18 months on a plea of guilty for the first breach of a deportation order.  The magistrate cannot be criticised as, despite referring to the 18 months’ starting point, he adopted a lower starting point of 15 months’ imprisonment.  Having considered the principle of totality, he ordered 4 months of the theft charge to run consecutive to the second charge which resulted in a total sentence of 19 months’ imprisonment. 

14.In respect of these two charges, they were different incidents and different in nature, in the circumstances consecutive sentences are appropriate. 

15.The humanitarian grounds put forward by the appellant at the time of sentence and again on appeal are not factors for any further reduction of the sentence.  As the magistrate rightly pointed out, these factors were already in existence when the appellant committed the offences.

16.In circumstances, the sentences imposed upon the appellant are not manifestly excessive or wrong in principle and the appellant’s appeal against sentence is dismissed.

Ms Noelle A Chit, SPP(Ag), of the Department of Justice, for the respondent

The appellant appeared in person