HKSAR v. Brillantes Victoria Oliva and Others

DCCC 907/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 907 OF 2014

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REASONS FOR SENTENCE

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Pleas and charges

1.All three defendants plead guilty to Charge 1, Theft.  They also plead guilty to Charge 2, also Theft. 

2.Charges 1 and 2 took place on 27 May 2014.

3.D1 further pleads guilty to Charges 3 and 6.  D2 pleads guilty to Charges 4 and 7 while D3 pleads guilty to Charges 5 and 8. 

4.Charge 3 to 8 are all Breaches of Deportation Order offences.  Charges 3 to 5 occurred on 26 May 2014 while Charges 6 to 8 took place on 21 July 2014.

Facts

Charge 1

5.On 27 May 2014 at about 1050 hours, D2 and D3 entered a jewellery shop in the Tsim Sha Tsui area.  They asked the salesman to show them some rings. The two defendants left a few minutes later without buying anything.  The salesman found a diamond ring valued at HK$20,922 missing.

6.The CCTV footage of the shop shows that D2 juggled the many rings on the display tray.  He hid one of the rings in his palm and later left with D3.  At the material time, D1 was wandering outside the shop.

Charge 2

7.About 8 hours later, the three defendants entered a watch shop also in the Tsim Sha Tsui area.  D1 asked the saleslady to show him some luxury watches.  Later, the defendants left the shop without any purchase.  The saleslady found a diamond watch valued at HK$477,000 missing. 

8.The CCTV footage of the shop shows that D2 distracted the saleslady.  D3 then stole the said watch from the unlocked showcase.  At the material time, D1 talked to another staff inside the shop.  The whole incident happened in less than 5 minutes of time. 

Deportation Orders

9.All three defendants were subjects of the following orders:-

(a) In the case of D1, a deportation order was issued against her on 10 August 1998;

(b) In the case of D2, a deportation order was issued against him on 22 December 2011;

(c) In the case of D3, a deportation order was issued against him on 6 October 1997.

Charges 3 to 5

10.All three defendants entered Hong Kong on 26 May 2014.  They left on the next day.

Charges 6 to 8

11.The three defendants entered Hong Kong again on 21 July 2014.  Three days later, they were arrested by police when they were wandering in the Tsim Sha Tsui area.

Admissions

12.Under caution, all three defendants made admissions to the police.

13.D1 said D2 was her boyfriend.  In Offences 1 and 2, the other two defendants gave her 20,000 Pesos after the crimes. 

14.D2 admitted he stole with D3 on both occasions.  He said D3 sold the stolen ring in Offence 1 and gave him 30,000 Pesos.  He also said in Offence 2, D3 sold the stolen watch and gave him 50,000 Pesos. 

15.D3 admitted he stole with D2 in Offences 1 and 2.  He sold the ring for 90,000 Pesos and the watch for 150,000 Pesos.  D3 however said he shared the proceeds equally with the other two defendants. 

Records

16.All three defendants are nationals of the Philippines. 

17.D1 is aged 48.  Between 1996 and 2011, she was in court here for five times.  She had committed a number of dishonest offences including conspiracy to steal in 2006 and in 2011.  In 2011 she was also convicted of breach of deportation order.  She left the Hong Kong prison in October 2013. 

18.Prosecution say D2 is of the age 37.  Counsel says D2 is in fact aged 39.  But there is no issue to be taken of the small difference.

19.D2 had only one conviction here in 2011.  That was for theft.  He was released from the Hong Kong prison in January 2012. 

20.Originally, prosecution say D3 is of the age 69.  Counsel says D3 is actually aged 80.  After some adjournment for investigation, prosecution finally concede that D3 can be considered as aged 80. 

21.Between 1997 and 2011, D3 had been in the Hong Kong court on three occasions.  He was convicted of theft in 1997 and in 1999.  He was also convicted of conspiracy to steal in 2011.  It is worthwhile to note that D1 and D3 were accomplices in that conspiracy to steal, DCCC 79/2011.  D3 also twice breached his deportation order in 1999 and in 2011.  He left the Hong Kong prison in November 2013.

Mitigation

D1

22.D1 is aged 48.  She is a widow; her husband died in 1990.  D1 has five children.  She is now living with her aged mother and the three youngest children from 13 to 23.  They were dependent upon D1.  Counsel says in the Philippines, D1 had worked as a hawker and a caterer.  She had also come to Hong Kong to work as a domestic helper.  That was in 1994.  Then she overstayed here, which gave rise to her first conviction.  That was in 1996 for breach of condition of stay.

23.Counsel says D1 had a fragile health; she had hypertension, cysts and kidney stones.  For her kidney problem, D1 had undergone four operations.  But the doctor said she needed a fifth one.  That would cost her 500,000 Pesos.  That would be equivalent to about HK$85,000.  Counsel says D1 needed money so she agreed to take part in the two thefts.  She got a total of 40,000 Pesos for those two crimes.  Counsel says D1 followed D2 into the crimes.  However, counsel says D1 had no relationship with the other two defendants. 

24.Counsel for D1 submits that the two thefts occurred within the same day. That justifies concurrent sentences.  Counsel says Offences 3 and 6 are both deportation order violation.  She submits that about 20 months’ imprisonment would be right after plea for a second breach.

D2

25.Counsel says D2 is in fact of the age 39.  He has a wife and three children in the Philippines from the age of 3 to 14.  He worked in a shop owned by his mother-in-law, earning a humble income.  The family met with hardship during a severe typhoon in 2013.  D2 needed money, so he came to Hong Kong to commit crimes.  Counsel says D2 was acquainted with D1 but they were not in any intimate relationship.  Counsel submits two letters written by D2.  In the letters, D2 expresses his repentance and asks for leniency.

26.Counsel asks the court to note that the two theft offences were proximate in time.  He also asks the court to note that D2 had not breached any deportation order previously. 

D3

27.After some argument and investigation, prosecution finally agree D3 is now of the age 80.

28.Counsel says D3 has three grown-up children in the Philippines.  D3 still had to take up employment to earn a humble income.  Counsel says D3 has high blood pressure, diabetes and chest problems.  He needed money so he came to Hong Kong.  Counsel tenders a letter written by D3; it’s in Tagalog.  The learned interpreter tells us that D3 in the letter expresses remorse and asks for leniency. 

29.This court asks the Correctional Services Department to prepare a medical report for D3 in respect of counsel’s complaints about D3’s fragile health. The report says D3 was admitted to hospital twice for pneumonia and chest discomfort during his remand.  No follow-up was required.  It is said that his major systems are unremarkable.  It is also said that his general health condition is stable. 

Sentence

30.The three defendants committed two orchestrated thefts within 8 hours in a day, ie 27 May 2014, the next day after their arrival in Hong Kong.  The shop in Offence 1 lost one ring valued over HK$20,000 while the shop in Offence 2 lost a much more valuable watch worth over HK$470,000.  These stolen properties could not be recovered.  The three defendants are unable to compensate the victims to any extent. 

31.Counsel for D1 says D1 followed D2 into the crimes but D2 refutes D1’s allegation that they were in an intimate relationship.  The three defendants gave different versions to the police on how they shared the proceeds.  It is not quite clear who the mastermind was.  Nevertheless, the fact remains that the three defendants came to Hong Kong together on 26 May 2014 and on the next day they jointly committed Offences 1 and 2 within a period of 8 hours. Obviously, they had planned for the crimes and they came to Hong Kong for the purpose of stealing.  That is not disputed by any defence counsel. 

32.However, no defendant would say why they came again together on 21 July 2014.  They were arrested three days later, ie 24 July 2014, when they were wandering in the Tsim Sha Tsui area.  I am not to speculate what the three defendants were up to on that occasion but the fact was that each of the three defendants breached his or her deportation order again.  In D1’s case, that was her third breach; the first in 2011; the second on 26 May 2014.  In D2’s case, it was his second breach; the first being on 26 May 2014.  While in D3’s case, it was his fourth breach; the first in 1990; the second in 2011; and the third on 26 May 2014. 

33.In HKSAR v Padilla Gerardo Gonzaga and four others CACC 275/2011, five Filipinos came to Hong Kong as a group.  Two days later, they stole a diamond worth over HK$255,000 at an international jewellery show at the Hong Kong Convention and Exhibition Centre.  The diamond had not been recovered. During the commission of the crime, the five acted in concert.  D3 and D4 made enquiries with the sales assistant to cause distraction.  D1 then stole the diamond from the booth while D2 just stood opposite to D1.  D5 appeared to play no specific role but he was part of the group. 

34.The Court of Appeal said there were aggravating features in that case, namely international element and the offence was planned and committed by several persons.  Such features in the context of a public exhibition warranted a starting point of 4 years’ imprisonment.  After one-third discount for their plea, the sentence for each of the five appellants on the theft charge was fixed at 32 months’ imprisonment. 

35.In the case of D4, she also pleaded guilty to one count of breach of deportation order and one count of making false representation to immigration officer.  The Court of Appeal ordered those two 8-month terms to run concurrently to each other but consecutively to the 32 months’ imprisonment for theft.  D4’s total sentence was therefore confirmed to be one of 40 months’ imprisonment.

36.In a more recent case, HKSAR v Tsogbadrakh Otgon CACC 393/2013, the appellant and three other women, all Mongolians, were convicted after trial of one count of stealing 10 diamonds worth over US$20,000 from a booth at a jewellery show at the Hong Kong Convention and Exhibition Centre.  They were also convicted after trial of one count of handling some coral jewellery worth over US$68,000 stolen from another booth at the show on the same day.  Some of the jewelleries were recovered but not all.  The appellant was sentenced by the trial judge to 4 years’ imprisonment on the theft charge and 3½ years’ imprisonment on the handling charge, with 3 months of the latter term to run consecutively to the first mentioned sentence of 4 years. 

37.The Court of Appeal endorsed the 4 years’ sentence in relation to the theft charge, saying that it was a planned theft by a group of persons who came to Hong Kong to commit the offence. 

38.In the present case, the three defendants as a group came to Hong Kong to commit the two thefts within a day separated by a span of 8 hours.  They did not steal at a jewellery show but in two shops in the Tsim Sha Tsui area.

39.In any theft sentence, the value of the stolen property is of utmost significance.  Charge 1 involved a ring worth over HK$20,000 while Charge 2 involved a much more valuable watch worth over HK$470,000.  Both items had not been recovered.  They never will be because according to the defendants’ admission the stolen items had been sold for proceeds.

40.Counsel for all three defendants admit that the group came to Hong Kong for the purpose of stealing.  Thus there are aggravating features in this case, ie the international element, planning and group effort. 

41.Counsel for D2 and D3 tries to draw a distinction between stealing at a public jewellery show and stealing at a jewellery shop.  He says Hong Kong’s international reputation would be at stake in the former case. 

42.What counsel says might well be the case but that does not mean Hong Kong’s reputation would not be hampered to any degree with this kind of theft occurring in shops in such tourists area like Tsim Sha Tsui.  If there is any distinction to be drawn, it is only a slight distinction and that slight distinction does not warrant any departure from the severe sentences the Court of Appeal have endorsed in the two said appeal cases. 

43.Counsel for D3 asks this court to be lenient towards D3, who is said to be of the age 80 now.  Counsel cites certain passages from page 373 of Sentencing in Hong Kong, 6th edition, 2011.  Counsel asks this court to be merciful and give D3 a slight discount on sentence because of his advanced age.  He says aged people would face more hardships in prison and it is also possible that D3 at his age might not be possible to complete the whole sentence if it is a very long one. 

44.D3 is indeed an aged man.  But it is a fact that he himself is well aware all along and with that awareness he chose to come to Hong Kong to breach the law here.  Furthermore, actually it is not the first time he had breached the law here.  He had been to the Hong Kong prison several times before.  The most recent visit was in 2011 when he served a total of 54 months’ imprisonment for offences including conspiracy to theft and breach of deportation order.  He came out of the Hong Kong prison only in November 2013.  Six months later, he came again and breached the law again.  In so doing, D3 chose his own fate.  He deserved no leniency or mercy from this court despite his advanced age.  I do not worry about D3’s health because the medical report prepared by the Correctional Services Department does not say he had a particularly poor health at his age. 

45.In the present case, the two thefts were planned crimes perpetrated by the three defendants who came to Hong Kong to steal.  Their roles in the crime might be different but their culpability was all equal. 

46.Of the two thefts, Offence 2 was the more serious because it involved a lost watch of over HK$470,000.  The sentence for each defendant before any discount should be 4 years’ imprisonment. 

47.Charge 1 involved property of less value.  The stolen ring was worth just over HK$20,000.  The sentence for all three defendants on this charge before any discount should be one of 3 years’ imprisonment. 

48.The two thefts were committed by the three defendants within 8 hours of a day at two different shops.  The two terms of imprisonment should not be wholly concurrent.  To order wholly concurrent sentences would just encourage culprits to commit crimes as many and quickly as they can.

49.As to the deportation order breaches, it has been widely accepted that 27 months’ imprisonment is an appropriate starting point for a first breach, and it would be enhanced in subsequent violations. 

50.In the case of Joned Asri also known as Tri Wahyu CACC 345/2012, the appellant breached his deportation order 10 times in less than 2 years. The Court of Appeal approved such starting points for the first five breaches, namely 27 months, 30 months, 30 months, 36 months and 42 months. 

51.Against the special facts of that case, the appellate court orders some sentences of the 10 deportation order offences to run concurrently and only 2 or 3 months of some others to run consecutively.   The total sentence for the 10 breaches was merely one of 33 months’ imprisonment after plea.  However, such lenient approach must be appreciated in the context that the appellate court was concerned with the totality of the 10 deportation order breaches. The Court of Appeal did not shed any indication that only 2 or 3 months of the sentence for one breach should run consecutively to that of another.

52.D1 had one previous deportation order breach in 2011, Offence 3 was her second.  The sentence before discount should therefore be one of 30 months’ imprisonment.  Offence 6 was her third breach, the sentence before discount should therefore be also one of 30 months’ imprisonment.

53.Regarding D2, Offence 4 was his first deportation order breach.  The sentence before discount should be 27 months’ imprisonment.  Offence 7 was his second breach.  The sentence before discount should be one of 30 months’ imprisonment. 

54.D3 had two previous deportation order breaches, in 1999 and in 2011. Offence 5 was his third breach and Offence 8 was his fourth.  The sentence before discount for Offence 5 should be one of 30 months’ imprisonment while that for Offence 8, 36 months’ imprisonment. 

55.The three defendants plead guilty to all the charges they face.  They are entitled to the usual one-third discount.  I thus impose the following sentences.

56.D1: Charge 1, 24 months; Charge 2, 32 months; Charge 3, 20 months; Charge 6, 20 months.  Four months of Charge 1, 5 months of Charge 3 and 5 months of Charge 6 are to run consecutively to each other and also consecutively to the 32 months of Charge 2.  Total: 46 months, ie 3 years 10 months’ imprisonment.

57.D2: Charge 1, 24 months’ imprisonment; Charge 2, 32 months; Charge 4, 18 months; Charge 7, 20 months.  Four months of Charge 1, 4 months of Charge 4 and 5 months of Charge 7 are to run consecutively to one another and also consecutively to the 32 months of Charge 2.  Total: 45 months, ie 3 years 9 months’ imprisonment.

58.D3: Charge 1, 24 months’ imprisonment; Charge 2, 32 months; Charge 5, 20 months; Charge 8, 24 months.  Four months of Charge 1, 5 months of Charge 5 and 6 months of Charge 8 are to run consecutively to one another and also consecutively to the 32 months of Charge 2.  Total: 47 months’ imprisonment, ie 3 years 11 months.