HKSAR v. Camargo La Rosa, Fernando Alfonso

HCMA 829/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 829 OF 2011

(ON APPEAL FROM KCCC 4331 OF 2011)

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Before: The Honourable Mr Justice Line in Court

Date of Hearing: 8 February 2012

Date of Judgment: 8 February 2012

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J U D G M E N T

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1.This is an appeal against a sentence of 8 months’ imprisonment imposed upon a plea of guilty to an offence of theft.

2.The appellant is a 42 year old man who was here in Hong Kong visiting from his home in Peru.  He arrived on 3 November of last year.  He committed the offence on 8 November.

3.The victim of the theft was a lady who was in a café who left her handbag which contained her wallet at her table while she went to the toilet.  When she came back it was gone.  The appellant had stolen it.  He was stopped shortly thereafter by security staff and under caution admitted that he had committed the offence and said that he was in need of money.

4.The mitigation he puts forward is based on the fact that he is a 42 year old family man with four children who feel his detention here in Hong Kong keenly in that they are in South America, unable to be supported financially, facing problems with their schools and the like.

5.The appellant before me, as indeed it was said on his behalf before the magistrate, apologises, said he is sorry and demonstrates remorse.

6.The very experienced magistrate who dealt with this case took a starting point of 12 months’ imprisonment.  She did that because she viewed this conduct as being similar to that of a pickpocket. I am bound to agree with that and one can find examples of that in previous similar cases in Hong Kong.

7.This is a rehearing.  The appellant does not have to demonstrate there was anything wrong with the magistrate’s sentence just that I should sentence him differently. 

8.The plea that he made to me made me pause and consider.  In the end I am not persuaded that I should take any course different from that which the magistrate took.

9.I am bound to say that one of the factors that I have taken into account is this.  It is the speed with which after his arrival here he resorted to crime.  He sought to mitigate that by saying that he had become desperate.  Without that mitigation the prospect raises itself of his case fitting that of others well known to these courts of those minded to come from South America to Hong Kong to commit crime because the pickings are perceived to be good and perhaps the punishments perceived to be lenient if caught.

10.How does an international traveller become desperate within only five days?  It has to be said that he arrived with little and explain why.  The explanation proffered before me today as to why he came in such circumstances was that he came to meet a man who had offered him a job but never turned up.  Inquiry reveals that there is no piece of paper, no job offer, no letter, nothing to support that.

11.The idea of the appellant travelling from Peru to Hong Kong on some oral offer, on such an ill-defined basis is one that challenges credibility.

12.Accordingly, I am not moved to reduce the sentence and the appeal is dismissed.     

Ms Peggy Leung, Senior Public Prosecutor of the Department of Justice, for the Respondent

Appellant appeared in person