HKSAR v. Maceda Antonio Naval also known as Ramirez Rolan Aboc and Navales Johnny Encabo
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DCCC 1011/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1011 OF 2014 -----------------------------------
---------------------------- Reasons for Sentence ---------------------------- Charges and facts 1.The Defendant (NAVALES Johnny Encabo) pleads guilty to attempted theft (1st Charge) and breach of deportation order (2nd Charge). 2.At about 9: 20 pm on 5 September 2014, Mr. LAU withdrew HK$800 at an ATM inside the Wan Chai MTR station. He put the cash into his wallet which was then placed in his left front trouser pocket. He stood on the right hand side of the escalator to go down to the train platform. A South Asian female was standing in front of him and another South Asian female was standing on his left. When he was about to reach the bottom of the escalator, one of the South Asian females suddenly squatted in front of him. He therefore decided not to walk forward in order not to collide with her. At that moment, he felt that a hand was put into his left front trouser pocket. He grasped the hand and turned about to see where the hand was from. Behind him was the Defendant. It was the Defendant’s left hand. 3.The case was reported to the police. The police arrived and arrested the Defendant for attempted theft. He remained silent after caution. 4.Fingerprint of the Defendant was obtained. The police record revealed that the Defendant had 2 other identities, ie MACEDA Antonio Naval, and RAMIREZ Rolan Aboc respectively. 5.Subsequent investigations revealed that a Deportation Order dated 26 June 2002 had been issued against the Defendant, prohibiting him from being in Hong Kong at any time thereafter. The Deportation Order was properly served on the Defendant on 30 July 2002. 6.The Defendant was deported to Manila on 30 July 2002 and 19 March 2013. The immigration record revealed that the Defendant had entered Hong Kong using the identity NAVALES Johnny Encabo on 28 August 2014. 7.The police arrested the Defendant for breach of deportation order. He remained silent after caution. Personal background and mitigation 8.The defendant was a Philippine resident. He is now aged 60. He has a criminal history in Hong Kong as follows:
9.His wife passed away in 2007. She had begotten 3 children for him, the youngest of which, a boy, has asthma. The boy’s medical expenses are beyond his means as a driver, so the boy only receives some alternative treatment which does not have very good effects. 10.His counsel, Ms Koo, informs me that he came here in breach of the deportation order to visit a woman, who worked as a domestic helper and became his soul mate as she took part in visiting prisoners as a voluntary service. He had the urge to see her despite her anticipation to return to the Philippines 2 months later. He could not wait any longer. Two weeks before going to Hong Kong, he had received HK$6,000 from her as a gift for his travelling expenses. However, when he set foot in Hong Kong, he found that she had already disconnected her phone line and gone without a trace. He did not know her address. As he did not have a photo of her, he wrote down her name on a piece of paper and asked around in the Philippine community on the street in Central and Wan Chai. He had madethis enquiry for 8 days until he suddenly became greedy and attempted to steal from the victim in Wan Chai MTR station. I do not regard his allegation of the reason to come to Hong Kong credible. It shall not qualify as a mitigating factor even if it is credible. 11.Ms Koo, submits that as the Defendant has only one breach of deportation order in 2011, she will suggest a starting point of not more than 30 months for this charge. Sentencing considerations 12.The sentencing guidelines for pickpocketing have pitched at 12 – 15 months as the starting point for a first time offender in the absence of aggravating factors (HKSAR v Ngo Van Huy [2005] 2 HKLRD 1). Aggravating factors included joint enterprise, stealing in a crowded place, and recidivism. 13.According to Cross and Cheung on Sentencing, 6th ed., 2011, the customary sentence for breach of deportation order is up to 3 years after trial. Our present Defendant has a previous conviction for it in 2011. Pursuant to my request, Ms. Koo has helpfully prepared a summary setting out the starting points for repeat offenders as approved by the Court of Appeal from January 2011 to December 2014. All those cases were after the said current edition of Cross and Cheung on Sentencing. For an offender in breach of deportation for up to the fourth time, the notional starting point has been between a high of 36 months (HKSAR v Bui Van Khai [2013] 2 HKLRD 471) and a low of 30 months (HKSAR v Nguyen Anh Cuong CACC 414/2011). A starting point of 30 months is suggested by Ms. Koo as applicable to our present case. I find this a fair suggestion. Sentencing this defendant 14.There is no evidence that the 2 South Asian females had communicated with the Defendant. I shall not infer that they were in joint enterprise with the Defendant. However, the Defendant was quick enough to seize the opportunity to put his hand into the victim’s left front trouser pocket to steal when the victim had to stop walking at the brief juncture when suddenly flanked by the 3 of them. I would have taken 15 months as the starting point had he completed the theft. Now I take 12 months as the starting point for the 1st Charge. 15.I take 30 months as the starting point for breach of deportation order, the 2nd Charge. 16.The only mitigating factor is his plea of guilty in respect of each charge. He can have a one-third discount for his sentences. The sentence is 8 months for the 1st Charge and 20 months for the 2nd Charge. The circumstances of the 2 offences were not related. The resulting total of 28 months does not appear to be excessive for the 2 offences together either. His sentences are to be consecutive.
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