DCCC79/2011 HKSAR v. ARLENE JOVER JUMUAD AND OTHERS - LawHero
DCCC79/2011
HKSAR v. ARLENE JOVER JUMUAD AND OTHERS
區域法院（刑事）Deputy District Judge A Kwok30/3/2011
DCCC79/2011
由此
A A
B DCCC79/2011 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 79 OF 2011
E E
----------------------
F HKSAR F
v.
G G
ARLENE JOVER JUMUAD D1
ALSO KNOWN AS
H H
ARLENE J JUMUAD, MARIA FE SAMSON
SERRANO, JUMUAD ARLENE JOVER,
I JOVER JUMUAD ARLENE, ARLENE I
MIRANDA JOSON AND ARLENE LICAS
J INARES J
K ELIZABETH RAMIREZ D2 K
ALSO KNOWN AS
L
ANNE MARIE CONTRERAS KATIGBAK L
AYRINE DINACRUZ ESBOCIA D3
M M
ALSO KNOWN AS
AUGUSTA LOYOLA MARQUEZ
N N
ALEJANDRO SARMIENTO BASA D4
O ALSO KNOWN AS O
ALFREDO SOLIMAN CLEMENTE
P P
BENITO A SUAREZ D5
ALSO KNOWN AS
Q Q
ISON FREDERICK MABAIT AND DIOSDADO
TULOD POBLETE
R R
S
---------------------- S
T T
U U
V V
由此
- 2 -
A A
Before: Deputy District Judge A Kwok
B B
Date: 31 March 2011 at 2.37 pm
C C
Present: Mr Cheung Man-kwan, Bobby, PP of the Department of
D
Justice, for HKSAR D
Ms Wong Kam-kuen, Catherine, instructed by Messrs Au,
E E
Thong & Tsang, assigned by the Director of Legal Aid, for
F
the 1st Defendant F
Mr Wong Hing-wai, Newman, instructed by Messrs Kenneth
G G
Sit, assigned by the Director of Legal Aid, for the 2nd & 3rd
H Defendants H
Mr David George Julian Ravenscroft, of David Ravenscroft
I I
& Co., assigned by the Director of Legal Aid, for the 4th
J Defendant J
Miss Chan Yee-man, Ada, of S H Chan & Co., assigned by
K K
the Director of Legal Aid, for the Defendant, for the 5th
L Defendant L
Offence: (1)-(2) Conspiracy to steal (串謀偷竊)
M M
(3)-(4), (6)-(9), (11) Making a false representation to an
N Immigration Officer lawfully acting under or in the execution N
of Part II of the Immigration Ordinance (向一名根據或為執
O O
行《入境條例》第 II 部而合法行事的入境事務主任作出
P P
虛假的陳述)
Q (5), (10) & (12) Breach of deportation order (違反遞解離境 Q
R
令) R
S S
REASONS FOR SENTENCE
T T
U U
V V
由此
- 3 -
A A
B B
1. D1-D5 all came from Philipines. They all came to Hong Kong
C C
using various passports as visitors between 20 June 2010 and 25 November
D
2010. They were subsequently arrested in connection with the theft of D
diamonds during a jewellery exhibition respectively held at the Hong
E E
Kong Convention and Exhibition Centre in June and September last year.
F F
2. All the Defendants appeared before me on 3 March 2011 and
G G
pleaded guilty to their respective charges including “Conspiracy to steal”
H (C1&C2), “Making a false representation to an Immigration Officer” H
(C3-4 & C6-9) and “Breach of deportation order” (C5, C10 & C12).
I I
J 3. They all agreed to the amended summary of facts and each of J
the D was duly convicted of his/her respective charges, namely (C2-5) for
K K
D1; (C1-2 & C6-7) for D2; (C1-2 & C8-9) for D3; (C2 & C9) for D4 and
L (C1 & C11-12) for D5. L
M M
FACTS
N N
4. The stolen property in respect of C1 is a 18.20 carat of
O O
diamond (“SP1”) which was placed in a cupboard in the victim company’s
P booth. It was found missing after the owner of the company served a P
customer for 8-10 minutes. Upon checking the CCTV image, it was found
Q Q
that D5 opened the cupboard and took away SP1 when the owner was
R serving another customer. D2 was also captured by the same footage to be R
wandering outside the booth at the same time.
S S
T T
U U
V V
由此
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A A
5. The stolen property in respect of C2 is a necklace which
B B
contained 32.83 carats of diamonds (“SP2”). It was gone missing from a
C C
glass showcase. CCTV images revealed that in fact a male slid open the
D
display cabinet, removed the necklace and handed it a female (D3). D3 put D
the necklace in her handbag and left. At the material time, D1 was talking
E E
to the salesperson and D2 and D4 were around in the vicinity. They all left
F
after the theft was completed. F
G G
6. After their arrest, the police checked with the immigration
H records and most Defendants (D4 excepted) were also found using false H
passports when they came to Hong Kong during this period. In addition,
I I
D1, D4 and D5 had previously been deported to Manila twice after they
J have served their previous sentences in Hong Kong and were thus also J
found to be in breach of their current deportation orders.
K K
L L
7. During their video-recorded interviews, all the Defendants
M admitted they took part in the stealing of the diamonds in respect of their M
respective charges. They all received rewards in pesos from the
N N
mastermind afterwards.
O O
BACKGROUNDS AND MITIGATIONS
P P
Q 8. D2 and D3 each has a clear record in Hong Kong. Q
R R
9. D1 has 3 previous criminal records. Her 2 nd conviction is also
S a similar record of “Making false representation to an Immigration S
Officer” in 1998 and more importantly, she had a similar record of
T T
U U
V V
由此
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A A
“Conspiracy to steal” in 2006 (DCCC1127/2005) for which she was
B B
sentenced to 2 years’ imprisonment respectively. This case is about D1
C C
acting together with other defendants to commit pickpocketing and she
D
pleaded guilty. She was first deported by the Immigration Authority D
nd
following her 2 conviction in 1998. For reason best known to the
E E
prosecution, unlike D4 and D5, she was not charged with “Breach of
F
deportation order” in DCCC1127/2005 but she was deported again to F
Manlia after she served her time in prison in 2007.
G G
H 10. D4 has 2 previous similar “Theft” records in 1997 and 1998 H
and he was sentenced to 10 months’ and 1 year imprisonment respectively.
I I
I was informed by his lawyer that the first theft conviction was in relation
J to pickpocketing while the 2nd conviction was about theft in a jewellery J
shop. By his last conviction, he was also in breach of his first deportation
K K
order issued in 1998 following the first conviction and for this offence, he
L was given an additional 2 months’ imprisonment. D4 was deported again L
to Manlia in 1999 after serving a total of 14 months’ imprisonment.
M M
N
11. D5 has also 2 previous similar “Theft” records in 1997 and N
O
1999 for which he was sentenced to 12 months’ and 6 months’ O
imprisonment respectively. After taking instruction, his lawyer confirmed
P P
that those two convictions were all about theft from jewellry shops.
Q Similarly, by his 2nd conviction, he was also in breach of his first Q
deportation order issued in 1997 and was given an additional 9 months’
R R
term. After serving his time, he was deported again to Manlia in 1999.
S S
T T
U U
V V
由此
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A A
12. In mitigation, I was told that D1 is now 45. She was married
B B
but her husband had passed away in 1994 already. She lives with her sons
C C
and daughters and she has to support the family alone as a single parent.
D
She worked as a second-hand commodities dealer earning a monthly D
income of around HK$2,000. A letter of mitigation written by D1 was
E E
submitted to me for consideration. She would never come back to Hong
F
Kong, she said. F
G G
13. D2 is 43 years of age. She is single but she has 2 sons and 2
H daughters who live in Manlia and the youngest child being only 2 years old. H
She worked as a saleslady in a flower shop and earned a monthly salary
I I
around HK$500. She produced to me a copy of a medical report obtained
J through e-mail certifying that her husband had undergone a hip J
replacement surgery back in March 2010. According to her counsel, the
K K
whole operation cost was over $200,000 peso.
L L
14. D3 is 46 years old. She is now divorced but in her previous
M M
two marriages, she has 4 sons and 6 daughters all live with her in Manlia.
N Most of the children are still under 18 with the youngest one being only 6. N
She also needs to support her father who is suffering from bone cancer. She
O O
was a saleslady by occupation and earned around HK$500.
P P
15. Counsel for both D2 and D3 submitted that these two ladies
Q Q
come from a humble background with huge financial burden. They were
R therefore very vulnerable and easy to be succumbed to the temptation to R
commit the present offences.
S S
T T
U U
V V
由此
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A A
16. D4 is 51 and is presently divorced. He resided with his family
B B
members and operated a street stall selling detergents back in Philippines
C C
earning an income of about HK$1,300 per month. His counsel submitted
D
that the offence was not very sophisticated as they even were not aware D
that their actions were captured by the CCTV camera.
E E
F
17. The age of D5 is a bit of mystery. According to the top part of F
the antecedent statement, he is 65 now but according to the latest
G G
instruction he gave to his lawyer, he should be 71. The reason I suspect is
H that he had come to Hong Kong using different names and identities in the H
past. In any event, I prepare, for the purpose of this proceeding, to treat him
I I
as a person of advanced age. He is married and he lives with his family in
J Philippines. He operated a heavy equipment business and his monthly J
salary is around HK$2,000. D5 claims to be in poor health and he suffers
K K
chronic illness for diabetes, hypertension and tuberculosis. His counsel
L said his role was minor and he only received $50,000 peso which was only L
1/3 of what he was promised as the reward.
M M
N SENTENCING CONSIDERATIONS N
O O
Starting point
P P
(1) Conspiracy to steal (C1-C2)
Q Q
R 18. Of all the 12 charges, the two “Conspiracy to steal” charges R
are obviously most serious of all. SP1 and SP2 could not be recovered.
S S
The value of SP1 and SP2 is substantial. It is agreed that the value of the
T T
U U
V V
由此
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A A
two pieces of diamonds is respectively about HK$2,730,000 and
B B
USD$120,000 (HK$936,000 approximately). The thefts took place
C C
during the jewellery exhibition held in the Convention and Exhibition
D
Centre. No doubt, the Defendants were making use of the opportunity D
when the exhibition hall was so crowded with local and oversea buyers and
E E
the stall operators were busy serving their potential customers.
F F
19. The conspiracy involved as it were, considerable planning
G G
and sophistication. According to their own admissions to the police, the
H Defendants were recruited by a syndicate in Philippines to come to Hong H
Kong to commit the offences. In order to gain entry into the exhibitions,
I I
they posed themselves as buyers and produced false business cards for
J registration purposes at the entrance. After entering into the exhibition, J
they then went along according to their plans. Some were responsible for
K K
distracting the salespersons by talking to them while some were
L responsible for stealing and hiding away the stolen property at the same L
time. They later went back to Philippines and received money rewards for
M M
their criminal enterprise. The two victim companies were all oversea
N companies participating in the exhibitions. The reputation of Hong Kong N
as an International Trade and Exhibition Centre is seriously jeopardized by
O O
their criminal acts. These group of Defendants are no doubt professional
P thieves and it is clear that they came to Hong Kong with the sole purpose of P
committing crime and make quick profits from criminal ventures. In
Q Q
HKSAR v Hong Chong-chi [2002] 1 HKC 295, the Court of Appeal made it
R clear that R
S S
“…anyone who acts in this way, to undermine the laws in
Hong Kong, deserves no sympathy.”
T T
U U
V V
由此
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A A
B B
20. I therefore consider that a deterrent sentence should be
C C
imposed in order to discourage like-thinking criminals from Philippines or
D
indeed from any far-flung jurisdictions from coming to Hong Kong to D
commit such offences especially during the time when exhibitions are
E E
on-going.
F F
21. There was numerous jewellery fairs held each year in Hong
G G
Kong. Incidentally, over the years, there were also many reported cases of
H theft of jewels during the exhibitions. In order to have a better H
understanding of the scale and the sentences of this types of cases, I
I I
therefore asked the prosecution to supply to me the court results of all
J theft-related cases that took place in jewellery exhibitions in Hong Kong J
for the past 10 years for consideration. As it turns out, There were a total of
K K
14 such cases and the present case is by far the most serious case of the
L kind in terms of the value of the stolen properties. L
M M
22. According to the information supplied, in one of those cases,
N DCCC 312/2005, the court adopted a 3 year starting point for the sentence N
of a conspiracy to steal a necklace valued at HK$1.2 million involving four
O O
Colombia and one Australian defendants.
P P
23. Not many of these cases went up to appeal. However, in
Q Q
HKSAR v Law Ng-tak CACC 204/2006, a Chinese judgment, the stolen
R property was a 4 carat of diamond valued at around HK$210,000. The trial R
judge adopted a starting point of 3 years and 9 months but the Court of
S S
T T
U U
V V
由此
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A A
Appeal considered that the suitable starting point should instead be 2 years
B B
and 9 months.
C C
D
24. The value of SP1 and SP2 far exceeded the stolen property D
mentioned in the case of Law Ng-tak (supra.) but as always, the value of
E E
the stolen property, though important, is not the only factor determining
F
the proper sentence. Give the facts of the case and the aggravating factors F
mentioned, I consider that a starting point of 5 years for C1 and 3 years for
G G
C2 is appropriate.
H H
25. I pause here to observe that as the criminal records reveal that
I I
D1 has one previous record of “Conspiracy to steal” while D4 and D5 each
J has 2 previous records of “theft”, it goes to show that these Defendants’ J
propensity to commit thefts whenever they can find their ways to Hong
K K
Kong is obviously so great and clearly, the sentences they received in the
L past were insufficient to deter them. For the reasons which I will later also L
relied in the dealing with sentences on “Breach of deportation order”
M M
relating to exactly these three Defendants, I am going to enhance their
N starting points on each “Conspiracy to theft” charge by 6 months. N
O O
26. As a result, while the starting points for D2 and D3 on C1 and
P C2 are 5 years and 3 years respectively, the starting points for D1, D4 and P
D5 on C1 and C2 are 5 ½ years and 3 ½ years respectively.
Q Q
R (2) Making false representation to an immigration officer (C3-C4, R
C6-C9 & C11)
S S
T T
U U
V V
由此
- 11 -
A A
27. The present case involves individual defendant using false
B B
passports and making false representation to an immigration officer.
C C
D
28. In HKSAR and Cortez Emily Bisoy [2002] 2 HKLRD 762, a D
Filipino domestic helper used a false passport to enter Hong Kong and
E E
subsequently used the same false passport to apply for an extension of
F
stay. She pleaded guilty to two offences of making false representation to F
an immigration officer. Deputy Judge McMahon (as he then was) held that
G G
12 months’ imprisonment for each offence was appropriate.
H H
29. Similarly, I consider that a starting point of 18 months is
I I
appropriate for these offences.
J J
(3) Breach of deportation order (C5, C10 & C12)
K K
L 30. The charge is always serious than the other immigration L
offences. It should be recognised as aiming to prevent the unlawful return
M M
to, and presence in, Hong Kong of someone who has no right to enter, nor
N any right of abode, and to punish a convicted offender who defies an N
individualised prohibition. What is more, the three Defendants in this case
O O
(D1, D4-5) deliberately returned to Hong Kong, in what can only be
P described as flagrant flouting of a direction properly made in respect of P
them, not to earn just a living but in order to commit serious crimes.
Q Q
According to the case authorities, sentence for this offence have markedly
R increased in the past few years. In the Court of First Instance, it was held R
that the offence is even more serious than unlawful landing and remaining
S S
and 18 months’ imprisonment after a guilty plea is appropriate: see HKSAR
T T
U U
V V
由此
- 12 -
A A
and Cortez Emily Bisoy (supra.). In HKSAR v Gabriel Malou Latin,
B B
HCMA 716/2004, it was further held that the starting point is 27 months
C C
for first offence, and 30 months for second offence. For this offence, D1 is
D
a first offender whilst D4 and D5 are both repeated offenders. As a matter D
of fact, D1 also came back to commit her last offence in 2005 but for some
E E
reasons, she was not charged for breach of her deportation order. For the
F
present purpose, I consider that it is only right that I shall also treat her as a F
persistent offender like D4 and D5. The principle relating to persistent
G G
offenders requires that the sentences of these three Defendants on this
H charge should be enhanced. The principle was not that these offenders are H
being sentenced at a higher level on the basis of their prior records, but that
I I
their sentences should be enhanced on the narrower basis that their prior
J histories in repeatedly committing a certain category of offence J
demonstrated that the personal deterrence factor of previous sentences had
K K
been insufficient to deter them from committing that type of offence again.
L (HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 applied) L
M M
31. Accordingly, I consider that in C5, C10 and C12, the starting
N point should be 30 months for D1, D4 and D5. N
O O
Mitigation
P P
32. Apart from their guilty pleas, I do not see any other mitigating
Q Q
factors which would warrant a further reduction in sentences. Their
R individual family circumstances virtually played no part in mitigation R
especially in serious offences. These are all matters which the Defendants
S S
were aware when they decided to come here and committed the crimes. It
T T
U U
V V
由此
- 13 -
A A
is a price they must pay for their crimes. In the case of D5, advanced age
B B
and ill-health are not in principle mitigating factors. However, the court
C C
was entitled to take advanced age into account where it thought appropriate,
D
and as an act of mercy to use it to discount the sentence in exceptional D
circumstances. Here D5’s illness was not particularly bad for a person of
E E
his age and is treatable in prison. Despite his age, D5 chose to ignore the
F
prohibition issued by the Hong Kong authority and took the risk and F
returned here to take part in the stealing. Given his propensity to commit
G G
offences of this sort, questions of deterrence outweighed considerations of
H mercy. (see HKSAR v Tam Yuen Tong [2007] 1 HKLRD 894) H
I I
Individual sentence for each Defendant after 1/3 discount
J J
D1– C2 (28 months) D2- C1 (40 months) D3- C1 (40 months)
K K
C3 (12 months) C2 (24months) C2 (24 months)
L C4 (12 months) C6 (12 months) C8 (12 months) L
C5 (20 months) C7 (12 months) C9 (12 months)
M M
N D4- C2 (28 months) D5- C1 (44months) N
C10 (20 months) C11(12 months)
O O
C12(20 months)
P P
Q Q
33. As C1 and C2 are both conspiracy charges, the gravamen of
R the two offences must be the Defendant’s agreement to take part in the R
unlawful acts. While I accept that individual defendant was assigned and
S S
played different roles in the course of the thefts, these are matters which
T T
U U
V V
由此
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A A
are more relevant if I am dealing with a substantive offence. Here, in the
B B
context of a conspiracy charge, I judge that their criminality are the same
C C
within the same charge so I do not seek to distinguish their roles or
D
sentences on individual charge. D
E E
34. Before I arrive at the final sentence, the principle of totality
F
dictates that I review the overall sentences and consider further adjustment F
if necessary. In the end, after first adjusting the sentences on the conspiracy
G G
and the immigration offences of individual defendant, I further reduce the
H sentence on immigration offences by half or nearly half so that each H
defendant in effect only needs to serve the remainder of the sentence on top
I I
of the sentence on the conspiracy charges.
J J
Total sentence for each Defendant
K K
L D1 L
(i) sentences on C3 and C5 to run concurrently (i.e. 20 months);
M M
(ii) 4 months of C4 to run consecutively to (i) (i.e. 24 months);
N (iii) 12 months of (i) – (ii) to run consecutively to the sentence on C2; N
O Total: 40 months’ imprisonment O
P P
D2
Q (i) 9 months of C2 to run consecutively to sentence on C1; Q
(ii) 3 months of C6 to run consecutively to sentence on C7 (i.e. 15
R R
months);
S (iii) 7 months of (ii) to run consecutively to (i); S
T T
U U
V V
由此
- 15 -
A A
Total: 56 months’ imprisonment
B B
C C
D3
D
(i) 9 months on C2 to run consecutively to sentence on C1; D
(ii) 3 months of C9 to run consecutively to sentence on C8 (i.e. 15
E E
months);
F
(iii) 7 months of (ii) to run consecutively to (i) F
G
Total: 56 months’ imprisonment G
H H
D4
I
(i) 10 months of C10 to run consecutively to sentence on C2 I
Total : 38 months’ imprisonment
J J
K K
D5
L
(i) sentences on C11 and C12 to run concurrently (i.e. 20 months) L
(ii) 10 months of (i) to run consecutively to sentence on C1
M M
Total: 54 months’ imprisonment
N N
O O
P P
(A. Kwok)
Deputy District Judge
Q Q
R R
S S
T T
U U
V V
由此
A A
B DCCC79/2011 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 79 OF 2011
E E
----------------------
F HKSAR F
v.
G G
ARLENE JOVER JUMUAD D1
ALSO KNOWN AS
H H
ARLENE J JUMUAD, MARIA FE SAMSON
SERRANO, JUMUAD ARLENE JOVER,
I JOVER JUMUAD ARLENE, ARLENE I
MIRANDA JOSON AND ARLENE LICAS
J INARES J
K ELIZABETH RAMIREZ D2 K
ALSO KNOWN AS
L
ANNE MARIE CONTRERAS KATIGBAK L
AYRINE DINACRUZ ESBOCIA D3
M M
ALSO KNOWN AS
AUGUSTA LOYOLA MARQUEZ
N N
ALEJANDRO SARMIENTO BASA D4
O ALSO KNOWN AS O
ALFREDO SOLIMAN CLEMENTE
P P
BENITO A SUAREZ D5
ALSO KNOWN AS
Q Q
ISON FREDERICK MABAIT AND DIOSDADO
TULOD POBLETE
R R
S
---------------------- S
T T
U U
V V
由此
- 2 -
A A
Before: Deputy District Judge A Kwok
B B
Date: 31 March 2011 at 2.37 pm
C C
Present: Mr Cheung Man-kwan, Bobby, PP of the Department of
D
Justice, for HKSAR D
Ms Wong Kam-kuen, Catherine, instructed by Messrs Au,
E E
Thong & Tsang, assigned by the Director of Legal Aid, for
F
the 1st Defendant F
Mr Wong Hing-wai, Newman, instructed by Messrs Kenneth
G G
Sit, assigned by the Director of Legal Aid, for the 2nd & 3rd
H Defendants H
Mr David George Julian Ravenscroft, of David Ravenscroft
I I
& Co., assigned by the Director of Legal Aid, for the 4th
J Defendant J
Miss Chan Yee-man, Ada, of S H Chan & Co., assigned by
K K
the Director of Legal Aid, for the Defendant, for the 5th
L Defendant L
Offence: (1)-(2) Conspiracy to steal (串謀偷竊)
M M
(3)-(4), (6)-(9), (11) Making a false representation to an
N Immigration Officer lawfully acting under or in the execution N
of Part II of the Immigration Ordinance (向一名根據或為執
O O
行《入境條例》第 II 部而合法行事的入境事務主任作出
P P
虛假的陳述)
Q (5), (10) & (12) Breach of deportation order (違反遞解離境 Q
R
令) R
S S
REASONS FOR SENTENCE
T T
U U
V V
由此
- 3 -
A A
B B
1. D1-D5 all came from Philipines. They all came to Hong Kong
C C
using various passports as visitors between 20 June 2010 and 25 November
D
2010. They were subsequently arrested in connection with the theft of D
diamonds during a jewellery exhibition respectively held at the Hong
E E
Kong Convention and Exhibition Centre in June and September last year.
F F
2. All the Defendants appeared before me on 3 March 2011 and
G G
pleaded guilty to their respective charges including “Conspiracy to steal”
H (C1&C2), “Making a false representation to an Immigration Officer” H
(C3-4 & C6-9) and “Breach of deportation order” (C5, C10 & C12).
I I
J 3. They all agreed to the amended summary of facts and each of J
the D was duly convicted of his/her respective charges, namely (C2-5) for
K K
D1; (C1-2 & C6-7) for D2; (C1-2 & C8-9) for D3; (C2 & C9) for D4 and
L (C1 & C11-12) for D5. L
M M
FACTS
N N
4. The stolen property in respect of C1 is a 18.20 carat of
O O
diamond (“SP1”) which was placed in a cupboard in the victim company’s
P booth. It was found missing after the owner of the company served a P
customer for 8-10 minutes. Upon checking the CCTV image, it was found
Q Q
that D5 opened the cupboard and took away SP1 when the owner was
R serving another customer. D2 was also captured by the same footage to be R
wandering outside the booth at the same time.
S S
T T
U U
V V
由此
- 4 -
A A
5. The stolen property in respect of C2 is a necklace which
B B
contained 32.83 carats of diamonds (“SP2”). It was gone missing from a
C C
glass showcase. CCTV images revealed that in fact a male slid open the
D
display cabinet, removed the necklace and handed it a female (D3). D3 put D
the necklace in her handbag and left. At the material time, D1 was talking
E E
to the salesperson and D2 and D4 were around in the vicinity. They all left
F
after the theft was completed. F
G G
6. After their arrest, the police checked with the immigration
H records and most Defendants (D4 excepted) were also found using false H
passports when they came to Hong Kong during this period. In addition,
I I
D1, D4 and D5 had previously been deported to Manila twice after they
J have served their previous sentences in Hong Kong and were thus also J
found to be in breach of their current deportation orders.
K K
L L
7. During their video-recorded interviews, all the Defendants
M admitted they took part in the stealing of the diamonds in respect of their M
respective charges. They all received rewards in pesos from the
N N
mastermind afterwards.
O O
BACKGROUNDS AND MITIGATIONS
P P
Q 8. D2 and D3 each has a clear record in Hong Kong. Q
R R
9. D1 has 3 previous criminal records. Her 2 nd conviction is also
S a similar record of “Making false representation to an Immigration S
Officer” in 1998 and more importantly, she had a similar record of
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A A
“Conspiracy to steal” in 2006 (DCCC1127/2005) for which she was
B B
sentenced to 2 years’ imprisonment respectively. This case is about D1
C C
acting together with other defendants to commit pickpocketing and she
D
pleaded guilty. She was first deported by the Immigration Authority D
nd
following her 2 conviction in 1998. For reason best known to the
E E
prosecution, unlike D4 and D5, she was not charged with “Breach of
F
deportation order” in DCCC1127/2005 but she was deported again to F
Manlia after she served her time in prison in 2007.
G G
H 10. D4 has 2 previous similar “Theft” records in 1997 and 1998 H
and he was sentenced to 10 months’ and 1 year imprisonment respectively.
I I
I was informed by his lawyer that the first theft conviction was in relation
J to pickpocketing while the 2nd conviction was about theft in a jewellery J
shop. By his last conviction, he was also in breach of his first deportation
K K
order issued in 1998 following the first conviction and for this offence, he
L was given an additional 2 months’ imprisonment. D4 was deported again L
to Manlia in 1999 after serving a total of 14 months’ imprisonment.
M M
N
11. D5 has also 2 previous similar “Theft” records in 1997 and N
O
1999 for which he was sentenced to 12 months’ and 6 months’ O
imprisonment respectively. After taking instruction, his lawyer confirmed
P P
that those two convictions were all about theft from jewellry shops.
Q Similarly, by his 2nd conviction, he was also in breach of his first Q
deportation order issued in 1997 and was given an additional 9 months’
R R
term. After serving his time, he was deported again to Manlia in 1999.
S S
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A A
12. In mitigation, I was told that D1 is now 45. She was married
B B
but her husband had passed away in 1994 already. She lives with her sons
C C
and daughters and she has to support the family alone as a single parent.
D
She worked as a second-hand commodities dealer earning a monthly D
income of around HK$2,000. A letter of mitigation written by D1 was
E E
submitted to me for consideration. She would never come back to Hong
F
Kong, she said. F
G G
13. D2 is 43 years of age. She is single but she has 2 sons and 2
H daughters who live in Manlia and the youngest child being only 2 years old. H
She worked as a saleslady in a flower shop and earned a monthly salary
I I
around HK$500. She produced to me a copy of a medical report obtained
J through e-mail certifying that her husband had undergone a hip J
replacement surgery back in March 2010. According to her counsel, the
K K
whole operation cost was over $200,000 peso.
L L
14. D3 is 46 years old. She is now divorced but in her previous
M M
two marriages, she has 4 sons and 6 daughters all live with her in Manlia.
N Most of the children are still under 18 with the youngest one being only 6. N
She also needs to support her father who is suffering from bone cancer. She
O O
was a saleslady by occupation and earned around HK$500.
P P
15. Counsel for both D2 and D3 submitted that these two ladies
Q Q
come from a humble background with huge financial burden. They were
R therefore very vulnerable and easy to be succumbed to the temptation to R
commit the present offences.
S S
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A A
16. D4 is 51 and is presently divorced. He resided with his family
B B
members and operated a street stall selling detergents back in Philippines
C C
earning an income of about HK$1,300 per month. His counsel submitted
D
that the offence was not very sophisticated as they even were not aware D
that their actions were captured by the CCTV camera.
E E
F
17. The age of D5 is a bit of mystery. According to the top part of F
the antecedent statement, he is 65 now but according to the latest
G G
instruction he gave to his lawyer, he should be 71. The reason I suspect is
H that he had come to Hong Kong using different names and identities in the H
past. In any event, I prepare, for the purpose of this proceeding, to treat him
I I
as a person of advanced age. He is married and he lives with his family in
J Philippines. He operated a heavy equipment business and his monthly J
salary is around HK$2,000. D5 claims to be in poor health and he suffers
K K
chronic illness for diabetes, hypertension and tuberculosis. His counsel
L said his role was minor and he only received $50,000 peso which was only L
1/3 of what he was promised as the reward.
M M
N SENTENCING CONSIDERATIONS N
O O
Starting point
P P
(1) Conspiracy to steal (C1-C2)
Q Q
R 18. Of all the 12 charges, the two “Conspiracy to steal” charges R
are obviously most serious of all. SP1 and SP2 could not be recovered.
S S
The value of SP1 and SP2 is substantial. It is agreed that the value of the
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two pieces of diamonds is respectively about HK$2,730,000 and
B B
USD$120,000 (HK$936,000 approximately). The thefts took place
C C
during the jewellery exhibition held in the Convention and Exhibition
D
Centre. No doubt, the Defendants were making use of the opportunity D
when the exhibition hall was so crowded with local and oversea buyers and
E E
the stall operators were busy serving their potential customers.
F F
19. The conspiracy involved as it were, considerable planning
G G
and sophistication. According to their own admissions to the police, the
H Defendants were recruited by a syndicate in Philippines to come to Hong H
Kong to commit the offences. In order to gain entry into the exhibitions,
I I
they posed themselves as buyers and produced false business cards for
J registration purposes at the entrance. After entering into the exhibition, J
they then went along according to their plans. Some were responsible for
K K
distracting the salespersons by talking to them while some were
L responsible for stealing and hiding away the stolen property at the same L
time. They later went back to Philippines and received money rewards for
M M
their criminal enterprise. The two victim companies were all oversea
N companies participating in the exhibitions. The reputation of Hong Kong N
as an International Trade and Exhibition Centre is seriously jeopardized by
O O
their criminal acts. These group of Defendants are no doubt professional
P thieves and it is clear that they came to Hong Kong with the sole purpose of P
committing crime and make quick profits from criminal ventures. In
Q Q
HKSAR v Hong Chong-chi [2002] 1 HKC 295, the Court of Appeal made it
R clear that R
S S
“…anyone who acts in this way, to undermine the laws in
Hong Kong, deserves no sympathy.”
T T
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A A
B B
20. I therefore consider that a deterrent sentence should be
C C
imposed in order to discourage like-thinking criminals from Philippines or
D
indeed from any far-flung jurisdictions from coming to Hong Kong to D
commit such offences especially during the time when exhibitions are
E E
on-going.
F F
21. There was numerous jewellery fairs held each year in Hong
G G
Kong. Incidentally, over the years, there were also many reported cases of
H theft of jewels during the exhibitions. In order to have a better H
understanding of the scale and the sentences of this types of cases, I
I I
therefore asked the prosecution to supply to me the court results of all
J theft-related cases that took place in jewellery exhibitions in Hong Kong J
for the past 10 years for consideration. As it turns out, There were a total of
K K
14 such cases and the present case is by far the most serious case of the
L kind in terms of the value of the stolen properties. L
M M
22. According to the information supplied, in one of those cases,
N DCCC 312/2005, the court adopted a 3 year starting point for the sentence N
of a conspiracy to steal a necklace valued at HK$1.2 million involving four
O O
Colombia and one Australian defendants.
P P
23. Not many of these cases went up to appeal. However, in
Q Q
HKSAR v Law Ng-tak CACC 204/2006, a Chinese judgment, the stolen
R property was a 4 carat of diamond valued at around HK$210,000. The trial R
judge adopted a starting point of 3 years and 9 months but the Court of
S S
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A A
Appeal considered that the suitable starting point should instead be 2 years
B B
and 9 months.
C C
D
24. The value of SP1 and SP2 far exceeded the stolen property D
mentioned in the case of Law Ng-tak (supra.) but as always, the value of
E E
the stolen property, though important, is not the only factor determining
F
the proper sentence. Give the facts of the case and the aggravating factors F
mentioned, I consider that a starting point of 5 years for C1 and 3 years for
G G
C2 is appropriate.
H H
25. I pause here to observe that as the criminal records reveal that
I I
D1 has one previous record of “Conspiracy to steal” while D4 and D5 each
J has 2 previous records of “theft”, it goes to show that these Defendants’ J
propensity to commit thefts whenever they can find their ways to Hong
K K
Kong is obviously so great and clearly, the sentences they received in the
L past were insufficient to deter them. For the reasons which I will later also L
relied in the dealing with sentences on “Breach of deportation order”
M M
relating to exactly these three Defendants, I am going to enhance their
N starting points on each “Conspiracy to theft” charge by 6 months. N
O O
26. As a result, while the starting points for D2 and D3 on C1 and
P C2 are 5 years and 3 years respectively, the starting points for D1, D4 and P
D5 on C1 and C2 are 5 ½ years and 3 ½ years respectively.
Q Q
R (2) Making false representation to an immigration officer (C3-C4, R
C6-C9 & C11)
S S
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A A
27. The present case involves individual defendant using false
B B
passports and making false representation to an immigration officer.
C C
D
28. In HKSAR and Cortez Emily Bisoy [2002] 2 HKLRD 762, a D
Filipino domestic helper used a false passport to enter Hong Kong and
E E
subsequently used the same false passport to apply for an extension of
F
stay. She pleaded guilty to two offences of making false representation to F
an immigration officer. Deputy Judge McMahon (as he then was) held that
G G
12 months’ imprisonment for each offence was appropriate.
H H
29. Similarly, I consider that a starting point of 18 months is
I I
appropriate for these offences.
J J
(3) Breach of deportation order (C5, C10 & C12)
K K
L 30. The charge is always serious than the other immigration L
offences. It should be recognised as aiming to prevent the unlawful return
M M
to, and presence in, Hong Kong of someone who has no right to enter, nor
N any right of abode, and to punish a convicted offender who defies an N
individualised prohibition. What is more, the three Defendants in this case
O O
(D1, D4-5) deliberately returned to Hong Kong, in what can only be
P described as flagrant flouting of a direction properly made in respect of P
them, not to earn just a living but in order to commit serious crimes.
Q Q
According to the case authorities, sentence for this offence have markedly
R increased in the past few years. In the Court of First Instance, it was held R
that the offence is even more serious than unlawful landing and remaining
S S
and 18 months’ imprisonment after a guilty plea is appropriate: see HKSAR
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A A
and Cortez Emily Bisoy (supra.). In HKSAR v Gabriel Malou Latin,
B B
HCMA 716/2004, it was further held that the starting point is 27 months
C C
for first offence, and 30 months for second offence. For this offence, D1 is
D
a first offender whilst D4 and D5 are both repeated offenders. As a matter D
of fact, D1 also came back to commit her last offence in 2005 but for some
E E
reasons, she was not charged for breach of her deportation order. For the
F
present purpose, I consider that it is only right that I shall also treat her as a F
persistent offender like D4 and D5. The principle relating to persistent
G G
offenders requires that the sentences of these three Defendants on this
H charge should be enhanced. The principle was not that these offenders are H
being sentenced at a higher level on the basis of their prior records, but that
I I
their sentences should be enhanced on the narrower basis that their prior
J histories in repeatedly committing a certain category of offence J
demonstrated that the personal deterrence factor of previous sentences had
K K
been insufficient to deter them from committing that type of offence again.
L (HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 applied) L
M M
31. Accordingly, I consider that in C5, C10 and C12, the starting
N point should be 30 months for D1, D4 and D5. N
O O
Mitigation
P P
32. Apart from their guilty pleas, I do not see any other mitigating
Q Q
factors which would warrant a further reduction in sentences. Their
R individual family circumstances virtually played no part in mitigation R
especially in serious offences. These are all matters which the Defendants
S S
were aware when they decided to come here and committed the crimes. It
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A A
is a price they must pay for their crimes. In the case of D5, advanced age
B B
and ill-health are not in principle mitigating factors. However, the court
C C
was entitled to take advanced age into account where it thought appropriate,
D
and as an act of mercy to use it to discount the sentence in exceptional D
circumstances. Here D5’s illness was not particularly bad for a person of
E E
his age and is treatable in prison. Despite his age, D5 chose to ignore the
F
prohibition issued by the Hong Kong authority and took the risk and F
returned here to take part in the stealing. Given his propensity to commit
G G
offences of this sort, questions of deterrence outweighed considerations of
H mercy. (see HKSAR v Tam Yuen Tong [2007] 1 HKLRD 894) H
I I
Individual sentence for each Defendant after 1/3 discount
J J
D1– C2 (28 months) D2- C1 (40 months) D3- C1 (40 months)
K K
C3 (12 months) C2 (24months) C2 (24 months)
L C4 (12 months) C6 (12 months) C8 (12 months) L
C5 (20 months) C7 (12 months) C9 (12 months)
M M
N D4- C2 (28 months) D5- C1 (44months) N
C10 (20 months) C11(12 months)
O O
C12(20 months)
P P
Q Q
33. As C1 and C2 are both conspiracy charges, the gravamen of
R the two offences must be the Defendant’s agreement to take part in the R
unlawful acts. While I accept that individual defendant was assigned and
S S
played different roles in the course of the thefts, these are matters which
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A A
are more relevant if I am dealing with a substantive offence. Here, in the
B B
context of a conspiracy charge, I judge that their criminality are the same
C C
within the same charge so I do not seek to distinguish their roles or
D
sentences on individual charge. D
E E
34. Before I arrive at the final sentence, the principle of totality
F
dictates that I review the overall sentences and consider further adjustment F
if necessary. In the end, after first adjusting the sentences on the conspiracy
G G
and the immigration offences of individual defendant, I further reduce the
H sentence on immigration offences by half or nearly half so that each H
defendant in effect only needs to serve the remainder of the sentence on top
I I
of the sentence on the conspiracy charges.
J J
Total sentence for each Defendant
K K
L D1 L
(i) sentences on C3 and C5 to run concurrently (i.e. 20 months);
M M
(ii) 4 months of C4 to run consecutively to (i) (i.e. 24 months);
N (iii) 12 months of (i) – (ii) to run consecutively to the sentence on C2; N
O Total: 40 months’ imprisonment O
P P
D2
Q (i) 9 months of C2 to run consecutively to sentence on C1; Q
(ii) 3 months of C6 to run consecutively to sentence on C7 (i.e. 15
R R
months);
S (iii) 7 months of (ii) to run consecutively to (i); S
T T
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由此
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A A
Total: 56 months’ imprisonment
B B
C C
D3
D
(i) 9 months on C2 to run consecutively to sentence on C1; D
(ii) 3 months of C9 to run consecutively to sentence on C8 (i.e. 15
E E
months);
F
(iii) 7 months of (ii) to run consecutively to (i) F
G
Total: 56 months’ imprisonment G
H H
D4
I
(i) 10 months of C10 to run consecutively to sentence on C2 I
Total : 38 months’ imprisonment
J J
K K
D5
L
(i) sentences on C11 and C12 to run concurrently (i.e. 20 months) L
(ii) 10 months of (i) to run consecutively to sentence on C1
M M
Total: 54 months’ imprisonment
N N
O O
P P
(A. Kwok)
Deputy District Judge
Q Q
R R
S S
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U U
V V