HKSAR v. Diaz Arthuro Vito and Another

DCCC 548/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO. 548 OF 2011

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Reasons for Sentence

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1.The Defendant pleaded guilty to and is now convicted of 6 charges, namely:-

Charge		items	date
1	Conspiracy to steal with 4 others	18.20 carats diamond	24/6/2010
2	Breach of a deportation order		24/6/2010
3	Making a false representation to Immigration Officer		10/4/2011
4	Theft	PW2’s ID card Home visit permit Octopus 3 keys and cards from PW2 handbag	10/4/2011
5	Attempt Theft	From PW2	10/4/2011
6	Breach of deportation order		10/4/2011

Facts of Charge 1:-

2.PW1 ‘s company participated in the jewellery fair held at the Hong Kong Convention Centre, the 18.20 carat diamond valued a USD350,000 was placed in a cupboard in the company ‘s booth.

3.At about 2:30pm, after serving a customer for 8 to 10 minutes, PW1 found the diamond had gone.

4.Upon checking with the CCTV footage, it was found that a male opened the cupboard door and stole the diamond at 2:35pm when PW1 was serving a customer.

5.At the material time, the D was in the company’s booth blocking the salesperson’s view so as to allow that male to steal the diamond from the cupboard.

6.Under caution: he admitted that there were accomplices including himself took part in this case. His role was to shield the thief and to distract the saleslady in order to help his accomplice to steal the diamond from the cupboard.

7.They all returned to the Philippines and he was responsible for the keeping of the diamond.

8.In the Philippines, it was sold for 500,000 peso. The D and the other male received 150,000 peso each while each female received 50,000 peso. The remaining 50,000 peso was spent together for a good time.

Facts of Charge 2

9.The D, in the name PEDRO COREMIN Tanguion, was subject to a deportation order dated 13/2/2005 in which prohibiting him from being in Hong Kong at any time thereafter. He was deported to Manila on 21/2/2005 and re-deported to Manila on 15/5/2006.

Facts of Charge 5

10.At about 1:40pm on 13/4/2011, PW2 was having lunch at Delifrance. She placed her handbag behind herself. She felt some movement, turned around to find that the D’s hand was inside her handbag.

11.The police was called.

Facts of Charge 4

12.PW2 found the items in her key bag was missing. The police recovered the items from a rubbish bin in Gloucester Road near Luk Kowk Hotel.

13.Under caution: the D said that he found no money in the key bag and threw it into the rubbish bin. He then went back to steal from the same bag but was caught by PW2.

Facts of Charge 3 and 6

14.The D admitted that he came to Hong Kong for 6 times. He used other names including PEDRO COREMIN TANGUION to enter Hong Kong. He admitted the passport he used on 10/4/2011 was real but his name was false.

15.Travel Index check showed that the D entered Hong Kong in the name of DIAZ ARTHURO VITO on 10/4/2011.

Criminal record:-

7/2004	Theft 10 months
8/2005	Theft 10 months
8/2005	Breach of deportation order 12 months

Mitigation:-

16.The D is 43 years old. He has 3 children in the Philippines. 2 young ones still rely on him for his support. His average monthly income is about HK$1000

Sentence :-

17.There were 2 incidents in this case.

18.One incident related to the stealing of the diamond and the other one was the pick pocketing from PW2 in Delifrance.

19.In both cases, the D clearly came to Hong Kong for one purpose: that was to steal, to make quick profit and returned to the Philippines.

Charge 2 and 6 – the offence of breach of deportation order

Charge3 – the offence of making false representation to an immigration office

20.The D knew full well that he was subjected to a deportation order in 2005. That means that he is prohibited from returning to Hong Kong.

21.In order to cover his real status, he used false names to enter into Hong Kong.

22.There is no doubt that this is an aggravating factor and is relevant when considering his sentence.

23.According to the facts, the D had been deported in 1/2005 and re-deported in 5/2006 although he had been sentenced to a term of 12 months for breach of deportation order. He is undeterred. He kept coming back to Hong Kong at least on 2 other occasions:-

a) 6/2010 for stealing at the Jewellaery Fair

b) 4/2011 for pick pocketing in the Delifrance.

24.In HKSAR v Nguyen Tuan Anh HCMA 1091/2003 , the Court upheld a sentence of  2 years after plea for an offence of breach of deportation order.

25.In HKSAR and Cortez Emily Bisoy (2002 ) 2 HKLRD 762 , the Court said that :-

“there were no guideline for the offence of making a false representation to an immigration officer, because the seriousness of the offence could vary greatly. A misrepresentation to an immigration officer directed at obtaining the illegal entry of the offender, or at maintaining his or her unlawful presence, in Hong Kong, was towards the more serious end of the scale. In such circumstances, a starting point of 12 months’ imprisonment was appropriate.”

Charge 1

26.There are a number of aggravating features in it:-

1. The D committed the offence with 4 others.

2. Each of them had their own role to play in this scheme. The D ‘s role was to distract the saleslady and to cover up the accomplice to take the diamond from the cupboard. That involved a sophisticate planning and it was highly organized. It was also a gang crime.

3. There was an international element in it that they were all from the Philippines and the diamond was sold in the Philippines.

27.The diamond was never recovered. The value of the diamond is USD350,000. Although the defence said that PW1’s company did not suffer any loss as it was covered by insurance. However, at the end of the day, both the insurance company and PW1’s company suffered loss as the price of a diamond is based on its rarity, clarity and size.

28.I, therefore, adopt a starting point of 5 years to reflect the gravity of the offence, reduce to 40 months because of his guilty plea.

As to Charge 4 and 5

29.There are sentencing guideline for pick pocketing offences.  HKSAR v Ngo Van Huy (2005) 2 HKLD 1. For a first time offender, a sentence of 12 to15 months is called for. The D is clearly not a first time offender.

30.In the present case, PW2’s personal items were recovered from a rubbish bin. The D was not pleased that he could not get any money from her key bag and returned to Delifrance to steal from PW2’s bag again.

31.The D already had 2 previous theft convictions, he also committed theft in 2010 (the diamond case ), this was his 4^th time to commit theft offence , at least on the official record.

32.He also entered into Hong Kong in breach of a deportation order and make false representation to an immigration officer.

33.A heavier sentence is needed for both the protection of the society and to serve a deterrent purpose.

34.I therefore adopted a starting point of 30 months reduced to 20 months for the 2 thefts offences.

35.Order of sentences:- 

	Starting point	1/3 discount
Charge 1	60 months	40 months
Charge 2	30 months	20 months	10 months consecutive to charge 1
Charge 3	12 months	8 months	Both sentences to run concurrently, 10 months be consecutive to charge 1
Charge 6	30 months	20 months
Charge 4	30 months	20 months	Both sentences to run concurrently, 10 months be consecutive to charge 1
Charge 5	30 months	20 months

36.Total sentence: 5 years and 10 months