HKSAR v. Mania Jolito Capino

DCCC 490/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 490 OF 2016

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REASONS FOR SENTENCE

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1.The defendant (D1 on the indictment and so termed throughout) has admitted the two counts on the indictment that he faces, namely charge 1 of attempted theft, contrary to section 9 of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200, the type of theft commonly referred to as pickpocketing, and charge 2 of breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115. By consent of all parties, mitigation and sentence on the charges admitted by D1 was adjourned until the conclusion of the trial of D2 on the indictment on charge 1.

Summary of Facts

2.The ‘Summary of Fact’ admitted by D1 disclose that at about 12.50 p.m. on 25/4/2016,  a police officer keeping surveillance of the area in and around Platform No. 2 of the MTR Prince Edward Station, Kowloon, observed a group of  persons including D1, all foreigners, standing together and chatting and appearing to pay attention to the personal belongings of passers-by. At approximately 1.02 p.m., a MTR train arrived at Platform No. 1. Passengers commenced boarding. The group of foreigners moved from Platform No. 2 to Platform No. 1, which was situated on the same level, and surrounded a Chinese male, Wong Hin-win, who was at the rear of a queue and waiting to board the train.  One of the foreigners was seen to stand on the right of Mr. Wong and try to open the bag Mr. Wong was carrying, but was unsuccessful. This foreigner than walked ahead of Mr. Wong and was seen to slow down his movements whilst he was boarding the train.  Another of the foreigners moved to the right of Mr. Wong and also tried unsuccessfully to open Mr. Wong’s bag.  He then turned around and spoke to and nodded to D1and then moved to the front of Mr. Wong appearing to try to slow him down. D1 moved to the right of Mr. Wong, and was seen to take a bag out from his breast pocket which he placed on top of Mr. Wong’s bag – he then reached his right hand into Mr. Wong’s bag.  By this time, Mr. Wong, D1 and one of the other foreigners as well as the police officer had all boarded the train. The police officer intercepted D1 and the second foreigner inside the train carriage. He then arrested D1.  Records kept by the Hong Kong Immigration Department establish that D1, using the name of MANIA JOLITO CAPINO arrived in Hong Kong on 19/4/2016 and was permitted to remain until 3/5/2016. A fingerprint check revealed that D1, using the name BANCAL Alvin C., had previously been convicted of attempted theft on 8/10/1991 and been deported from Hong Kong pursuant to a Deportation Order issued against him. He was deported on 19/4/1992. 

3.I was satisfied beyond all reasonable doubt that the facts admitted by D1 supported the 2 charges that he had admitted, and accordingly I convicted him of the two charges.

Previous Convictions

4.D1 has one previous conviction for attempted theft in 1991 – this was also a pickpocketing offence. He was sentenced to 9 months’ imprisonment and deported for life after serving his sentence pursuant to Deportation Order No. 57/92.

Antecedent Statement & Mitigation

5.The Antecedent Statement was read into the record by the Prosecution – no issue was taken on the contents.  It disclosed that D1 was born in the Philippines in 1964 and is now aged 52 years. Little else was disclosed as he did not wish to disclose this.

6.In mitigation, Counsel submitted that D1 was married with 6 children aged between 16 and 31 years, 3 of whom are still schooling.  He is the financial pillar of his family.  In the Philippines, he ran a small grocery store and earned about 10,000 Pesos (equivalent to HK$1,500) each month.  He frequently had prostate infections for which he needed to take medication.  He is educated to high school level.  He had pleaded guilty and was very remorseful.  He had made a frank admission, saving the Court’s time and financial resources.  There had been no loss.  His last conviction was some 25 years ago.  He sought leniency so he could return to his family in the Philippines.                 

Sentencing Considerations

Attempted Theft

7.The Courts when approaching sentencing in cases such as this look at the guidelines laid down in previous cases.  There is clear guideline laid down in the case of HKSAR v. Ngo Van Huy, [2005] 2 HKLRD 1, that the usual starting point is 12 – 15 months’ imprisonment after trial for a first offender where there are no mitigating or aggravating features. The starting point can be adjusted upward for the presence of aggravating features such as the presence or use of a weapon or tool, where the offence is committed in a place in which the public is at particular risk, where the accused commits the offence in conjunction with another, where the accused is a repeat offender or a persistent one, etc.

8.Here, the offence of attempted theft took place at a busy MTR station and on an MTR train. The Defendant committed the offence in conjunction with another. Passengers on MTR trains are particularly vulnerable to this type of theft. He also acted in conjunction with others. D1 arrived in Hong Kong on 19/4/2016, and the present offence was committed on 25/4/2016, within a week of his arrival in Hong Kong. There is a lapse of time between his date of arrival and the date the offence was committed, and I am unable to draw the only and irresistible inference that he came to Hong Kong specifically to commit the offence of pickpocketing.  I shall not make any adjustment to the starting point on the ground that he came to Hong Kong specifically to commit the offence of pickpocketing. Although D1 has a precious conviction of a similar nature, this was some 25 years ago, and I attach no weight to his previous conviction.  Save for the plea of guilty, there is little else in mitigation.  I am satisfied that the appropriate starting point after trial is 18 months’ imprisonment.  He is entitled to a one-third discount to reflect his plea.  On Charge 1, D1 is sentenced to 12 months’ imprisonment.

Breach of deportation order

9.There are no guideline sentences for offences of breach of deportation orders.  The maximum sentence is 7 years’ imprisonment.  Generally the starting point for a first breach is one of 27 months’ imprisonment (see for example HKSAR v. Cortez Emily Bisoy [2002] 2 HKLRD 762 and HKSAR v. Ta Dinh Son, CACC 348/2013).  This is the first time that D1 has breached the deportation order. I adopt a starting point of 27 months’ imprisonment for Charge 2, and discount it by one-third to reflect his plea.  He is sentenced to 18 months’ imprisonment on Charge 2.

Totality

10.I have considered whether the sentences should be served consecutively or concurrently, either in whole or in part. I note that the immigration offence and the theft offence are completely different in nature and have no overlapping criminality. I have considered the authority of Ta Dinh Son, supra.  The two offences are separate and distinct offences warranting consecutive sentences. I am of the view that even if the sentences for the two offences are to run wholly consecutively, the overall sentence does not breach the totality principle, and I am satisfied that the sentences properly reflect the criminality of the two offences.  For these reasons, I order the sentences on Charges 1 and 2 to be served consecutively.

11.D1 is sentenced as follows:

Charge 1 12 months’ imprisonment.

Charge 2 18 months’ imprisonment, to run consecutively to the sentence for Charge 1.

12.The total is therefore 30 months’ imprisonment.