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B DCCC 103/2014 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 103 OF 2014
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F HKSAR F
v.
G G
MACHACA PERALTA Oscar Alberto
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Before: HH Judge E. Yip
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Date: 28th March 2014 at 12:41 pm
J Present: Mr Lenny CHENG, Public Prosecutor, of the Department J
of Justice, for HKSAR
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Mr BOASE Melville Thomas Charles, of M/s Boase Cohen &
L Collins assigned by DLA for Defendant L
Offence: [1] Theft (盜竊罪)
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[2] Breach of deportation order (違反遞解離境令)
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[3] – [9] Making a false representation to an Immigration
O Assistant lawfully acting under or in the execution of Part II O
of the Immigration Ordinance (向根據或為執行入境條例第
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II 部而合法行事的入境事務助理員作出虛假的申述)
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Reasons for Sentence
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A A
B Charges B
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1. The defendant pleads guilty to theft by pickpocketing (1 st
D Charge), breach of deportation order (2nd Charge), and making false D
representations to an Immigration Assistant (3rd – 9th Charges).
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F Facts for 1st Charge F
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2. On 12 October 2013, the female victim went on board an
H MTR train at Admiralty Station. Carried on her right arm was her handbag, H
which was unzipped and contained her wallet. Her wallet contained her
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identity card, a bank card, an Octopus Card and $280 cash. On the way to
J Wanchai Station on the train, the defendant stood beside her and used a J
piece of black cloth to cover his arm and his hand. When the train arrived
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at Wanchai Station, the defendant walked away from her. As she could not
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find her wallet, she asked him several times whether he had seen it. He
M
ignored her at first but later said “Drop”. She saw her wallet dropping from M
the black cloth held by him. She accused him of theft. He kept
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apologizing and asked her not to call the police. A passenger intercepted
O him and later the police arrested him. O
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3. Under caution, he admitted using the black cloth to cover his
Q hand when reaching his hand into her handbag to steal her wallet. Q
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4. He also made admissions relating to the 2nd – 9th Charges.
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A A
B Facts for 2nd Charge B
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5. Fingerprint comparison revealed that the defendant was the
D subject of a deportation order dated 6 May 2010 served on him on 17 May D
2010. He was deported on 17 May 2010 to South Africa and prohibited
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from entering Hong Kong in future. At that time he was holding a
F Peruvian passport in the name of “Eli Edgard Machaca Coyori” with a date F
of birth stated as 18 August 1970 (“Passport 1”). The deportation order
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was accordingly made in that name. It was explained to him and he signed
H in acknowledgment of his understanding. H
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6. Being in Hong Kong on 12 October 2013, he was in breach of
J the deportation order. He had used his own passport (“Passport 2”) for J
entry in this instance.
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L
Facts for 3rd – 9th Charges L
M M
7. Travel movement record as follows revealed that he had used
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Passport 1 to enter and leave Hong Kong on 14 occasions:
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Date of Arrival Date of Departure
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20 January 2009 16 February 2009
Q 20 February 2009 18 March 2009 Q
14 May 2009 10 June 2009
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17 June 2009 14 July 2009
S 18 August 2009 15 September 2009 S
19 September 2009 7 October 2009
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A A
B 10 October 2009 17 May 2010 (when deported) B
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Personal background and mitigation
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8. The defendant is now aged 43. He was born in Peru. He is a
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Peruvian citizen. He is married and has 5 children aged between 4 and 21.
F He used to be a hawker of electrical parts earning a small income. He came F
to Hong Kong on the previous occasions to enter Mainland China to buy
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goods to send back to his wife. He alleged that he possessed no passport of
H his own by then, he had used his brother’s passport, which is Passport 1, H
for the 14 occasions aforementioned.
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J J
9. In the present instance, he came to Hong Kong to look for his
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wife, whom he heard had come to Hong Kong. He had used his own K
passport. As confirmed by the prosecution, this passport, Passport 2, was
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issued to him only on 6 September 2013.
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10. He has 1 record for theft by pickpocketing dated 27 October
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2009.
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11. The prosecution refers to the female victim’s statement to the
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effect that the compartment on the train where the present theft took place
Q was not particularly crowded at that time. Q
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A A
B Sentencing considerations B
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12. The sentencing guidelines for pickpocketing have adopted 12
D – 15 months as the starting point for a first time offender in the absence of D
aggravating factors (HKSAR v Ngo Van Huy [2005] 2 HKLRD 1).
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F 13. In HKSAR v Gabriel, Malou Lantin HCMA 716/2004, the F
Court of First Instance identifies 27 months as the starting point for a first
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breach of deportation order.
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14. In HKSAR v Pahila [2007] 1 HKLRD 410, a case handed up
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by the prosecutor, the Court of First Instance regards that there is no
J difference between using a false travel document and making a false J
representation to an immigration officer. McMahon J proposes 18 months
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as the starting point.
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M
Sentencing this defendant M
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15. I take 18 months as the starting point for the 1st Charge.
O One-third off for his guilty plea, the sentence is 12 months. O
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16. I take 27 months as the starting point for the 2nd Charge.
Q One-third off for his guilty plea, the sentence is 18 months. Q
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17. I take 18 months as the starting point for each of the 3rd – 9th
S Charges. One third-off for his guilty plea, the sentence is 12 months each. S
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A A
B 18. The 9 charges cannot be seen as part and parcel of the same B
transaction and shall warrant consecutive sentences. However, upon
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consideration of the totality principle, I order the following adjustments:
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(1) 18 months to be served for the 2nd Charge;
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st
(2) 12 months to be served for the 1 Charge, to be
F consecutive to the other charges; F
(3) 6 months of 12 months for each of the 3rd – 9th Charges
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to be concurrent among themselves but consecutive to
H the 1st and 2nd Charges. H
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19. The overall sentence is 3 years.
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K K
L L
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( E. Yip )
District Judge
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