HKSAR v. Doniza Samuel Laguardia and Others

DCCC780/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 780 OF 2011

----------------------

---------------------

Reasons for Sentence

---------------------

1.All three defendants pleaded guilty to the charge of theft, contrary to section 9 of the Theft Ordinance. The 2nd defendant also pleaded guilty to the charge of breach of deportation order.

2.All defendants admitted that on 10 June 2011, they were travelling from Wanchai to Tsim Sha Tsui by the MTR train.  While in the journey, as observed by the police officers, they kept on looking at passengers’ belongings.  At Tsim Sha Tsui Station, they took escalators but sped up.  The 2nd defendant stood in front of a Japanese national who had a luggage with a briefcase on top, and the 1st and the 3rd defendants just stood behind him. 

3.Police then saw the 1st defendant moving his hand and took the wallet of that passenger from his briefcase. Police immediately ran up and the 1st defendant then threw the wallet to the ground.  The wallet contained some bankcards and cash of about 46,000 Japanese currency.  All three defendants were then arrested.

4.Upon recorded interview, all defendants admitted committing the offence and asked for forgiveness. 

5.For Charge 2, the 2nd defendant also admitted a deportation order had been served and explained to him on 20 June 1998 and he was thereafter prohibited from being in Hong Kong.

6.The 1st defendant, aged 36, married with 2 children and he has no criminal conviction in Hong Kong.  He is a freelance dancer and the sole breadwinner of the family.  Mr Tong submits that out of greed, he saw the wallet and was tempted to steal it.  Now he is very remorseful and pleads guilty at the earliest opportunity.

7.The 2nd defendant, aged 68, married but his wife is half‑paralysed after suffering from a stroke, medical expenses were huge and Mr Tong submits that for economic reason, he needs money and committed the present offence.  The 2nd defendant has 9 previous criminal convictions from 1984 to 2005, 5 counts related to theft and also 3 counts of breach of deportation order where he was last sentenced in 2005 for a total of 40 months’ imprisonment of conspiracy to steal and breach of deportation order.  The 2nd defendant was discharged in October 2007.

8.The 3rd defendant, aged 51, married with 4 children. He operated a small shop in the Philippines selling soft drinks.  Mr Tong says the plan was not premeditated.  He just committed the offence out of greed and he had no criminal conviction in Hong Kong.  Mr Tong further submits that there was no violence nor weapon used, and all belongings had been recovered as well.

9.To start with, as to the mitigation of committing the offence without any premeditation, taking into account the Summary of Facts, the concerted acts of splitting up, standing close in front and behind of the target person, I cannot agree that that was done from pure coincidence without any plan beforehand.

10.Pickpocketing is a serious offence.  In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the Chief Judge Ma (as he then was) laid out the guidelines for sentencing.  When applying to the present case, the aggravating features include that it was committed in a crowded place inside MTR station, a group of overseas pickpockets coming to Hong Kong looking for a chance.  As said in that case:

“We take the opportunity to indicate our will. Because of the seriousness, organised crime of this nature including group pickpockets, even without international ramifications, might in future properly attract a starting point of at least 2½ years’ imprisonment.”

11.For the 1st and the 3rd defendants, they have no previous criminal conviction.  They pleaded guilty showing full remorse to the case.  After consideration, I will also take a starting point of 2½ years’ imprisonment.  Upon their guilty plea, that will be reduced to 20 months. 

12.For the 2nd defendant, he is clearly a persistent offender where by the case of HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, a higher starting point shall be adopted.  I shall therefore adopt 3 years’ imprisonment as the starting point.  Upon his guilty plea, I reduce it to 2 years.

13.For the charge of breach of deportation order, it was the 4th occasion that the 2nd defendant had been in breach.  Considering the case of HKSAR v Pham Van Hung CACC14/2011, I shall adopt a starting point of 3-year imprisonment.  Upon guilty plea, I reduce it to 2 years.

14.Lastly, on totality principle, both charges are separate and distinct.  But given the mitigating factors and all the background circumstances, I assess that an overall sentence of 3½ years’ imprisonment appropriate, by which 6 months of Charge 2 be run concurrent to the 1st charge. 

15.To conclude, the 1st and the 3rd defendants for Charge 1, each be sentenced to 20 months’ imprisonment. 

For the 2nd defendant, the 1st charge, 24 months;

2nd charge, also 24 months, of which 6 months be run concurrent to the 1st charge. That makes a total of 3½ years’ imprisonment.