HKSAR v. Fabroa Marites Bacus and Others

DCCC960/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 960 OF 2011

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Reasons for Sentence

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1.In this case, I am dealing with four Filipinos, D1 to D4 who are jointly charged with one count of theft, Charge 1. Apart from D1, D2 to D4 are each further charged with an additional count of breach of deportation order.

2.As can be seen, the defendants were a professional gang of thieves who came to Hong Kong from their home country in the guise of tourists with the specific purpose of operating as a team to prey on unsuspecting citizens and to steal from them.    

The facts

3.The offence took place at about 7.40 pm on 18 July 2011 at H&M, a popular and large international fashion store, which was situated in the ground floor of a crowded shopping centre in Mong Kok known as Langham Place.  The police spotted D1 to D4 acting furtively inside the store and they were looking at the bags of the customers therein.  As a result, they were put under observation and they were soon found to act together to steal a mobile phone from the victim of Charge 1. 

4.According to paragraphs 2 to 4 of the Summary of Facts, which has been agreed by all of the defendants, the course of the theft are as follows, and I quote,

“2. Shortly afterwards, D4 put his focus on Lo Ka-lee, (‘PW1’) (aged 19), who was wearing a shoulder bag on her left shoulder. D4 looked at D1-3 and pointed to PW1. As D1-3 did not respond, D4 went towards them, talked to them and pointed to PW1 again. Then, D3 picked up some clothes from the shop and stood closely at the left side of PW1. D2 went forward and stood closely at the right hand side of PW1. At this moment, D1 also went forward and stood on the left side of PW1. Having stood on PW1’s left side, D1 opened PW1’s shoulder bag and stole PW1’s I-phone 4.

3. The police therefore intercepted D1-4. D1-4 attempted to escape but were finally arrested by the police. Under caution, D1, D3 and D4 denied Charge 1. D2 remained silent.

4. The I-phone 4 stolen by D1 was recovered and returned to PW1. She confirmed that two persons stood closely on her right and left side at the material time.”

5.Having conducted further investigation, it was further revealed that D2 to D4 were subject to deportation orders after they were previously convicted in Hong Kong.  D2 is subjected to a deportation order dated 2 October 1996, D3 dated 26 June 2002, and D4 dated 16 February 2000. 

Criminal records and backgrounds of the defendants

6.D1 is 33 years of age, and has a clear record in Hong Kong.  She is a nursing assistant and she is a single mother and has a daughter and a son at a tender age.  Her parents are all over 75 years old and they all need her support.  Her lawyer asked for leniency on her behalf.  

7.D2 is 48 years old.  In the past, she has appeared in the Hong Kong Court for five occasions and has 15 previous convictions altogether, including eight offences involving dishonesty such as attempted theft and obtaining property by deception.  She has three sons and a daughter. She has separated with her husband and so she is the breadwinner of the family.  Through her lawyer, she also asked the court to exercise mercy in sentencing.    

8.D3 is 57 years of age.  He had one similar conviction of pickpocket in 2001 where he was sentenced to 12 months’ imprisonment.  He said he was a businessman in the Philippines and he vowed not to return to Hong Kong to commit crime again through his lawyer.  In a mitigation letter written by himself, he asked the court to consider leniency because his wife just passed away last month and leaving behind two children who have no one to take care of. 

9.D4 is 51 years of age.  He also said that he was a businessman to the police but in the past he had appeared in court in Hong Kong for six times from 1995 to 2004.  He has a total of 10 previous convictions, out of which three are similar offences of theft, and more importantly, he had already three previous breach of deportation order convictions and his last sentence was 18 months in 2004 for this offence.  He said he would not come back to Hong Kong again in his mitigation letter, and also his mother is now over 86 years of age and he wanted to go back to take care of his age-old mother. 

Sentencing Considerations

10.In sentencing Charge 1, I remind myself of the case of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, which is the sentencing guideline case on pickpocketing.  What the court had said has clearly been laid down in paragraph 9 of the judgement. 

11.Also, in another case, HKSAR v Tan Hong Sheng, CACC238/2005, the Court of Appeal had approved a sentence of 2½ years of the appellant who was convicted after trial.  What the appellant and the two other pickpockets did was also to steal a mobile telephone from the handbag of a lady near the Kowloon Star Ferry Pier.  The judge followed Ngo Van Huy and took a starting point of 12 to 15 months’ imprisonment.  He identified four aggravating features:

(1) that the offence was committed in a crowded area, when the public was at particular risk;

(2) that the offence was carried out by three persons;

(3) that there was an international element since the offenders committed the offence the very day after they arrived in Hong Kong from the Mainland; and

(4) that the offence was organised, well-planned, and quite professional.

12.Considering the above two judgements carefully, I find that the facts of Tan Hong Sheng are indeed very similar to the present case, except only that Tan and his co-defendants were coming from the Mainland, while the four defendants here were coming from the Philippines.  All the aggravating features of the offence as mentioned by the judge in Tan Hong Sheng are equally valid and present in this case, if not more serious.        

13.According to the facts, they all entered Hong Kong on 12 or 13 July, and this offence was committed within one week of their arrival.  What is more, D2, D3 and D4 have each been deported by the Hong Kong Immigration Authority before and they all well-knew that they were not allowed to set foot in Hong Kong again in their life and yet they were still willing to take the risk and come back to Hong Kong, apparently in different names, in order to commit crimes and earn quick money.    

14.That clearly reflects that I am dealing with a group of professional criminals who came all the way to Hong Kong to commit crimes such as group pick-pocketing.    

15.Although D1 had a clear record, she was part of an organised and professional ring of thieves, and according to the facts, she was even the one who actually stole the mobile phone from the victim.  Although I should also make it clear that I judge that, as it is a joint enterprise, each defendant is obviously playing a different role in Charge 1, and to that extent, they are all equally culpable.

16.As far as the starting point is concerned, I therefore will similarly adopt 15 months as the normal starting point for Charge 1, and the sentence of D2 to D4 is enhanced to 30 months because of the presence of the above aggravating features as stated above.  The sentence will be reduced by one-third on account of their pleas and each defendant from D2 to D4 is sentenced to 20 months’ imprisonment on this charge. 

17.For D1, however, since she is of a clear record, her sentence will therefore be only enhanced from 15 months to 24 months. After the one-third discount, the sentence for D1 on this charge is therefore 16 months’ imprisonment.     

18.Now I come to the breach of deportation offence. 

19.In this case, for both D2 and D3, this is the first time they have breached the deportation order, but whereas in the case of D4, this is already the fourth conviction of the same offence, so it is obvious that they will receive a different treatment as far as sentencing is concerned.

20.In sentencing Charge 2 to Charge 3, I refer to the judgement in HKSAR v Gabriel Malou Lantin, HCMA716/2004, which held that “the authorities indicate that for a first offence of breach of the deportation order, a starting point of 27 months would be appropriate.”   Normally when this offence is committed together with an illegal remaining charge, only a few months will be imposed on top of the sentence of the later offence.  This is because the two offences were not separate and distinct. 

21.The Court of Appeal said in HKSAR v Pham Van Hung, CACC14/2011 that, “When a person subject to a deportation order arrive in Hong Kong, he commits both offences, and the underlining criminality was the same, namely the person’s unlawful presence in Hong Kong.”  In that case, the court held that the total sentence of 30 months was manifestly excessive, and that a total sentence of 23 months was adequate.  This was arrived at by ordering only 3 months for the breach of deportation order offence to be served consecutively to the illegal remaining charge. 

22.In the present case, however, all the defendants were each additionally charged with a theft offence.  The approach to the overall sentence must therefore be different.  In District Court, the maximum penalty on conviction for the offence of being in Hong Kong of in breach of a deportation order is 7 years’ imprisonment.  D2 and D3 have each been imposed of a deportation order once.  Their entries into Hong Kong under an assumed name when they knew that there was a lifetime prohibition on their coming back to Hong Kong justify, after giving credit for their plea of guilty, a sentence of 18 months’ imprisonment for each defendant.

23.The offences, being separate and distinct, justify consecutive sentences in principle.  However, although they thoroughly deserve the sentences imposed, they would still be reduced because of the operation of the totality principle. 

24.Having said that, however, because the additional offence of theft is of a completely different nature and unlike an illegal remaining charge, I order that only 8 months of the 18 months imposed on the breach of the deportation order offence will be ordered to be served concurrently with the sentence of 20 months’ imprisonment on the 1st charge therefore making a total of 30 months’ imprisonment for D2 and D3.

25.For D4, this, as I have said, was already the fourth conviction of the breach of deportation order offence.  Obviously, this makes D4 in a much more serious position than that of D2 and D3.  In the case of Pham Van Hung, as stated above, the appellant also had four previous breach of deportation order convictions, similar to D4 in this case, and the Court of Appeal considered that the appropriate starting point is one of 42 months’ imprisonment, and reduced it to 28 months for the plea.  Applying the authority, in D4’s case I will also sentence D4 to 28 months for Charge 4, and based on the same consideration, because of the totality principle, I will order 12 months of the sentence on Charge 4 to run concurrently with his sentence on Charge 1  therefore making a total of 36 months’ imprisonment.