HKSAR v. Abiera Jeric Faelmarin and Another

DCCC 807/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 807 OF 2015

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Reasons for Sentence

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Charges

1.D1 and D2 plead guilty to theft by pickpocketing (1^st Charge).  D1 also pleads guilty to breach of deportation order (2^nd Charge). 

Facts

2.In the evening on 1 August 2015, the police found D1 and D2 suspicious when D1 and D2 were staring at the bags carried by the pedestrians on Nathan Road near the junction with Nanking Street.  They followed D1 and D2 all the way walking to Jordan MTR station and the MTR ride to Tsim Sha Tsui station.  At the Tsim Sha Tsui station platform, D1 pointed at a tourist couple to D2.  D1 and D2 followed the couple up the escalator to the concourse and the exit gate.  The female tourist was walking in front of the male tourist, who was closely flanked by D1 and D2 from behind. 

3.The male tourist had a shoulder bag carried on his back.  D1 had a white booklet.  D2 had a paper fan.  With her paper fan held above the male tourist’s shoulder bag, D2 unzipped the shoulder bag for some length.  The remaining length was unzipped by D1 with his white booklet held above the shoulder bag.  D1 then stole a bag in red and black colour from the shoulder bag.   

4.The police intercepted D1 and D2 after the exit gate.  The bag in red and black colour was retrieved from D1.  The tourist couple was located and confirmed the bag and contents as their belongings, which comprised 2 passports, one credit card, cash of HK$1,854.90 and MOP$23.50.  The booklet and the paper fan were seized from D1 and D2 respectively. 

5.Immigration record revealed that D1 and D2 had arrived in Hong Kong on the previous day on visitor status.  They were permitted to stay for 14 days. 

6.D1 was the subject of a deportation order for life issued on 13 June 1998.  He had entered Hong Kong subsequently by different names, resulting in deportation back to the Philippines in 2000, 2003 and 2008 respectively. 

7.In the video-recorded interview under caution, D1 said that:

(1) He only happened to know D2 on the MTR when D2 asked him for direction;

(2) They travelled together at his suggestion;

(3) He did not know D2’s use of the paper fan was for covering anything;

(4) He committed the theft alone without D2’s knowledge or collusion;

(5) He was the subject of a deportation order for life;

(6) Given his previous deportation he used a passport in a different name so as to expedite his entry into Hong Kong this time.

8.In the video-recorded interview under caution, D2 said that:

(1) She came to Hong Kong for travelling;

(2) She did not know D1 but for the fact that she happened to lose the way to Central and asked D1, who was a stranger, for direction;

(3) She travelled with D1 at D1’s suggestion;

(4) She had the paper fan due to the hot weather;

(5) She did not commit any theft or know D1 committing the theft.

Personal background and mitigation

9.D1 is 44 years of age, a Philippine national.  His cohabitant and 3 children are in the Philippines. His criminal records are as follows:

(1) 2 for theft (sentenced in 1997);

(2) 1 for attempted theft by pickpocketing (sentenced in 1999);

(3) 1 for conspiracy to steal (sentenced in 2006);

(4) 3 for obtaining property by deception (sentenced in 2001);

(5) 1 for attempted obtaining property by deception (sentenced in 2001);

(6) 3 for breach of deportation order (sentenced in 1999, 2001, 2006);

(7) 1 for failing to surrender to custody without reasonable cause as appointed (sentenced in 1997).

10.He is the sole breadwinner for his cohabitant and 3 children.  He is a taxi-driver with an income of HK$2,000 in equivalence.  He underwent a liver operation in 2013 by borrowing HK$10,000 in equivalence to pay the medical bill.   

11.D2 is 33 years of age, a Philippine national.  She has a clear record.  Her parents, husband and 3 children are in the Philippines.  He worked as a trader with an income of HK$4,000 in equivalence per month.  Her 13-year-old daughter is suffering from hepatitis and receiving treatment.  D2 claims to have a fight with her husband 4 days before her departure to Hong Kong.  She spent HK$4,000 in equivalence on the round-trip air ticket.  She had HK$2,800 in equivalence and 2 credit cards with her. 

12.D1 and D2 came to know each other on the same flight to Hong Kong.  They moved into the same guest house in Tsim Sha Tsui as walk-in guests.  At the Jordan MTR platform, D1 asked D2 to commit pickpocketing so that they could make some money.  D2 agreed and D1 instructed her to open people’s bag for him to take the property.  Neither D1 nor D2 disputes that it took place at a rush hour at a crowded venue.  

13.Mr. Tong, D1’s solicitor, informs me that D1 accepts his more culpable role as the instigator of the pickpocketing.   For the breach of deportation order, Mr. Tong suggests a starting point of 27 months for a first offender with 3 months’ increment for each subsequent conviction.  He presently suggests a starting point of 36 months as it is now the fourth conviction of this kind.

Sentencing considerations

14.In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal laid down a guideline sentence of 12 to 15 months for pickpocketing after trial for a first time offender.  A heavier sentence would be imposed where there were aggravating factors, which included:

(1) The offence committed in a place in which the public is at particular risk, such as crowded places like the MTR or the race course, crowded shopping areas where the pedestrian traffic is heavy;

(2) Repeat or persistent offending.

15.Depending on the instance of aggravating factors, the usual sentencing range for breach of deportation order is from 27 months (HKSAR v Ta Dinh Son CACC 348/2013) to 3 years (HKSAR v Nguyen Tuan Anh [2004] HKCU 44, HKSAR v Pham Van Tuan [2009] HKCU 776).   

Sentencing D1 and D2

16.In D1’s case, as he was the instigator, I start with a basic figure of 15 months.  I add 3 months for each of the following aggravating factors:

(1) It took place at a rush hour at a crowded venue;

(2) It was a joint enterprise with paraphernalia;

(3) He came to Hong Kong from abroad to commit the offence;

(4) He was a repeat offender for dishonesty offences, including theft in particular.

17.The starting point is 27 months.  I give a one-third discount for his plea of guilty.  He has no other mitigating factors.  The sentence is 18 months. 

18.In D2’s case, I start with a basic figure of 12 months.  I add 3 months for each of the following aggravating factors:

(1) It took place at a rush hour at a crowded venue;

(2) It was a joint enterprise with paraphernalia.

19.Different from D1’s case is the absence of 2 aggravating factors in D2’s case.  First, it is arguable whether she came to Hong Kong from abroad to commit the offence.   I give her the benefit of the doubt and disregard it as an aggravating factor.  Secondly, she has a clear record whereas he was a repeat offender for dishonesty offences, including theft in particular.   

20.The starting point is 18 months.  I give a one-third discount for her plea of guilty.  She has no other mitigating factors.  The sentence is 12 months. 

21.For the offence of breach of deportation order, I take a starting point of 36 months.  I give a one-third discount for his plea of guilty.  He has no other mitigating factors.  The sentence is 2 years. 

22.As he came to Hong Kong to commit the offence whilst fully aware of his immigration status and by using a passport in another name, I find overlapping sentences not justified.  I do not consider consecutive sentences of 18 months (1^st Charge) and 2 years (2^nd Charge), making up a total of 3 years and 6 months, too long so as to warrant a reduction under the totality principle.  His total sentence is 3 years and 6 months.