A A
DCCC 139/2015
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 139 OF 2015 C
D
---------------------- D
HKSAR
E E
v
F Avendano Lucila Roque F
also known as
G Ancheta Vilma R, G
Anchcta Vilma R,
Beroy Josephine Z,
H Abeque Rosita Morales, H
Mamagon Digna Lansang,
Gervacio Auroral Naval,
I Gervacio Acrora Naval and I
Abeque Ros
J J
----------------------
K Before: HH Judge Woodcock K
Date: 10 April 2015 at 3.22 pm
Present: Ms Lai Ting-wai Fontaine, PP of the Department of
L L
Justice, for HKSAR
Mr Melville Thomas Charles Boase, of Boase, Cohen &
M Collins, assigned by the Director of Legal Aid, for M
the defendant
Offence: (1) Theft (盜竊罪)
N (2) Breach of deportation order (違反遞解離境令) N
O --------------------- O
Reasons for Sentence
P P
---------------------
Q Q
1. The defendant has pleaded guilty to two charges, the
first being a theft charge contrary to Section 9 of the
R R
Theft Ordinance, Cap 210; the second charge is a breach of
S deportation order contrary to Section 43(1)(a) of the S
Immigration Ordinance, Cap 115.
T T
2. Where Charge 2 is concerned, the defendant was served
U U
a deportation order dated 22 October 1991 and it is still in
CRT25/10.4.2015/IDM 1 DCCC 139/2015/Sentence
V V
A A
force now. Therefore her arrival in Hong Kong on 26 November
2014, albeit under an alias, is a breach of that order.
B B
C 3. As for the facts relating to Charge 1, they are as C
follows. On 3 December 2014, about a week after the defendant
D arrived in Hong Kong, the victim was travelling on the MTR D
between Sai Wan Ho and Central. He had in his rear trouser
E E
pocket 24 $500 notes, a total of $12,000 cash in his rear
pocket. He got off the MTR at Central and was heading to an
F F
exit. He stepped on the escalator to go up and before he did
G that, he checked his back pocket and his roll of banknotes was G
still there.
H H
4. On the escalator, the defendant, who stood in front of
I I
him, dropped her Octopus card and she knelt down to pick it up.
She took her time.
J J
K
5. Behind the victim, a male jostled him by pushing and K
pressing up against him, so much so that the victim turned
L around to ask the male to back away. L
M 6. After the defendant had picked up her Octopus card, M
this male stopped jostling the victim. Not long after, the
N N
victim realised that his roll of banknotes was missing from his
back pocket, but he immediately looked behind him and saw the
O O
defendant and that male taking the escalator back down. He felt
P the way they were standing, they were together. P
Q 7. He was suspicious and chased after them. The victim Q
managed to grab the defendant but the male got away. The police
R R
were called and when they searched the defendant’s handbag, they
found a wallet containing $7,000 cash. This cash was made up of
S S
14 $500 banknotes.
T T
8. The defendant denied the offence under caution. Today,
U she admits that she and another picked the victim’s pocket. U
CRT25/10.4.2015/IDM 2 DCCC 139/2015/Sentence
V V
A A
9. I have heard mitigation put forward on the defendant’s
B B
behalf. I have been given the defendant’s age as 52, and
C according to the police records, the defendant has eight C
aliases. She also has 14 convictions in Hong Kong. They include
D theft and attempted theft offences. They also include D
immigration offences such as breach of condition of stay and
E E
illegally remaining in Hong Kong, as well as three previous
convictions for a breach of a deportation order. According to
F F
the records, her last conviction was in 2005, and she was
G deported again after her release from prison in May 2007. G
H 10. As for her personal circumstances, I have heard that H
She has been widowed for over 10 years, and she has two children
I I
of her own, including a 9-year-old. Her oldest child has a
6-year-old, making her a grandmother. She is also apparently
J J
financially responsible for nine nieces and nephews who are
K
orphans. K
L 11. In Manila, she works as a fruit vendor, and her L
average salary is approximate HK$3,000 a month.
M M
12. Sadly for her children and those that rely on her, the
N N
defendant cannot say she had no idea how seriously the courts in
Hong Kong would view and treat these offences, having committed
O O
them in the past.
P P
13. The defendant’s best mitigation is her plea of guilty
Q today. Q
R R
14. For Charge 1, the pick-pocketing offence, Court of
Appeal has laid down guidelines in the authority of HKSAR v
S S
Ngo Van Huy, CACC 107/2004. In that authority, the Court of
T Appeal considers what would be an appropriate starting point, as T
well as what aggravating factors would increase that starting
U point. Briefly put, the Court of Appeal held that the basic U
CRT25/10.4.2015/IDM 3 DCCC 139/2015/Sentence
V V
A A
starting point for a first time offender was 12 to 15 months’
immediate imprisonment. Aggravating factors that can increase a
B B
starting point include a use of a weapon or sharp object; when
C the offence is committed in a crowded public place such as the C
MTR or racecourse; if the defendant acted in concert with
D others; and if the defendant and others came from overseas to D
commit crimes in Hong Kong. This list of factors is not
E E
exhaustive.
F F
15. Here I do find aggravating factors exist. The
G defendant, I would find, has come from the Philippines to commit G
an offence in Hong Kong. Secondly, the defendant did not act
H alone, she distracted the victim whilst the wanted person picked H
his pocket. And thirdly, the location of the offence was an
I I
escalator of the Central MTR station, an obviously crowded
place.
J J
K
16. For these three aggravating factors I find exist, I K
will add 2 months for each of those factors, therefore an
L additional 6 months. L
M 17. As for the starting point, the amount of money stolen M
was not insignificant, nor is the defendant a first offender. I
N N
take a starting point of 18 months’ imprisonment and add the 6
months I consider appropriate for the aggravating factors.
O O
Therefore I take a starting point of 24 months for Charge 1.
P P
18. For Charge 2, the defendant has committed this offence
Q for the fourth time. I have considered several authorities, Q
including HKSAR v Tran Viet Thanh, CACC 54/2011, where three
R R
appeals from three different appellants were heard together by
the Court of Appeal, and in that authority, the Court of Appeal
S S
reviewed the sentences for this offence.
T T
U U
CRT25/10.4.2015/IDM 4 DCCC 139/2015/Sentence
V V
A A
19. I also took into account HKSAR v Pham Van Hung,
CACC 14/2011. I will take a starting point of 3 years’
B B
imprisonment for Charge 2.
C C
20. Defendant, please stand up. You have pleaded guilty,
D you are entitled to a discount of one-third for your plea. After D
that discount is applied, Charge 1 is reduced to 1 year and
E E
4 months’ imprisonment. Charge 2 is reduced to 2 years’
imprisonment. I take into account the totality principle, and I
F F
order that four months of Charge 1 be served consecutively to
G Charge 2 and the balance concurrently, therefore the total G
sentence for both offences is 2 years and 4 months’
H imprisonment. H
I I
J J
A. J. Woodcock
K District Judge K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT25/10.4.2015/IDM 5 DCCC 139/2015/Sentence
V V
A A
DCCC 139/2015
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 139 OF 2015 C
D
---------------------- D
HKSAR
E E
v
F Avendano Lucila Roque F
also known as
G Ancheta Vilma R, G
Anchcta Vilma R,
Beroy Josephine Z,
H Abeque Rosita Morales, H
Mamagon Digna Lansang,
Gervacio Auroral Naval,
I Gervacio Acrora Naval and I
Abeque Ros
J J
----------------------
K Before: HH Judge Woodcock K
Date: 10 April 2015 at 3.22 pm
Present: Ms Lai Ting-wai Fontaine, PP of the Department of
L L
Justice, for HKSAR
Mr Melville Thomas Charles Boase, of Boase, Cohen &
M Collins, assigned by the Director of Legal Aid, for M
the defendant
Offence: (1) Theft (盜竊罪)
N (2) Breach of deportation order (違反遞解離境令) N
O --------------------- O
Reasons for Sentence
P P
---------------------
Q Q
1. The defendant has pleaded guilty to two charges, the
first being a theft charge contrary to Section 9 of the
R R
Theft Ordinance, Cap 210; the second charge is a breach of
S deportation order contrary to Section 43(1)(a) of the S
Immigration Ordinance, Cap 115.
T T
2. Where Charge 2 is concerned, the defendant was served
U U
a deportation order dated 22 October 1991 and it is still in
CRT25/10.4.2015/IDM 1 DCCC 139/2015/Sentence
V V
A A
force now. Therefore her arrival in Hong Kong on 26 November
2014, albeit under an alias, is a breach of that order.
B B
C 3. As for the facts relating to Charge 1, they are as C
follows. On 3 December 2014, about a week after the defendant
D arrived in Hong Kong, the victim was travelling on the MTR D
between Sai Wan Ho and Central. He had in his rear trouser
E E
pocket 24 $500 notes, a total of $12,000 cash in his rear
pocket. He got off the MTR at Central and was heading to an
F F
exit. He stepped on the escalator to go up and before he did
G that, he checked his back pocket and his roll of banknotes was G
still there.
H H
4. On the escalator, the defendant, who stood in front of
I I
him, dropped her Octopus card and she knelt down to pick it up.
She took her time.
J J
K
5. Behind the victim, a male jostled him by pushing and K
pressing up against him, so much so that the victim turned
L around to ask the male to back away. L
M 6. After the defendant had picked up her Octopus card, M
this male stopped jostling the victim. Not long after, the
N N
victim realised that his roll of banknotes was missing from his
back pocket, but he immediately looked behind him and saw the
O O
defendant and that male taking the escalator back down. He felt
P the way they were standing, they were together. P
Q 7. He was suspicious and chased after them. The victim Q
managed to grab the defendant but the male got away. The police
R R
were called and when they searched the defendant’s handbag, they
found a wallet containing $7,000 cash. This cash was made up of
S S
14 $500 banknotes.
T T
8. The defendant denied the offence under caution. Today,
U she admits that she and another picked the victim’s pocket. U
CRT25/10.4.2015/IDM 2 DCCC 139/2015/Sentence
V V
A A
9. I have heard mitigation put forward on the defendant’s
B B
behalf. I have been given the defendant’s age as 52, and
C according to the police records, the defendant has eight C
aliases. She also has 14 convictions in Hong Kong. They include
D theft and attempted theft offences. They also include D
immigration offences such as breach of condition of stay and
E E
illegally remaining in Hong Kong, as well as three previous
convictions for a breach of a deportation order. According to
F F
the records, her last conviction was in 2005, and she was
G deported again after her release from prison in May 2007. G
H 10. As for her personal circumstances, I have heard that H
She has been widowed for over 10 years, and she has two children
I I
of her own, including a 9-year-old. Her oldest child has a
6-year-old, making her a grandmother. She is also apparently
J J
financially responsible for nine nieces and nephews who are
K
orphans. K
L 11. In Manila, she works as a fruit vendor, and her L
average salary is approximate HK$3,000 a month.
M M
12. Sadly for her children and those that rely on her, the
N N
defendant cannot say she had no idea how seriously the courts in
Hong Kong would view and treat these offences, having committed
O O
them in the past.
P P
13. The defendant’s best mitigation is her plea of guilty
Q today. Q
R R
14. For Charge 1, the pick-pocketing offence, Court of
Appeal has laid down guidelines in the authority of HKSAR v
S S
Ngo Van Huy, CACC 107/2004. In that authority, the Court of
T Appeal considers what would be an appropriate starting point, as T
well as what aggravating factors would increase that starting
U point. Briefly put, the Court of Appeal held that the basic U
CRT25/10.4.2015/IDM 3 DCCC 139/2015/Sentence
V V
A A
starting point for a first time offender was 12 to 15 months’
immediate imprisonment. Aggravating factors that can increase a
B B
starting point include a use of a weapon or sharp object; when
C the offence is committed in a crowded public place such as the C
MTR or racecourse; if the defendant acted in concert with
D others; and if the defendant and others came from overseas to D
commit crimes in Hong Kong. This list of factors is not
E E
exhaustive.
F F
15. Here I do find aggravating factors exist. The
G defendant, I would find, has come from the Philippines to commit G
an offence in Hong Kong. Secondly, the defendant did not act
H alone, she distracted the victim whilst the wanted person picked H
his pocket. And thirdly, the location of the offence was an
I I
escalator of the Central MTR station, an obviously crowded
place.
J J
K
16. For these three aggravating factors I find exist, I K
will add 2 months for each of those factors, therefore an
L additional 6 months. L
M 17. As for the starting point, the amount of money stolen M
was not insignificant, nor is the defendant a first offender. I
N N
take a starting point of 18 months’ imprisonment and add the 6
months I consider appropriate for the aggravating factors.
O O
Therefore I take a starting point of 24 months for Charge 1.
P P
18. For Charge 2, the defendant has committed this offence
Q for the fourth time. I have considered several authorities, Q
including HKSAR v Tran Viet Thanh, CACC 54/2011, where three
R R
appeals from three different appellants were heard together by
the Court of Appeal, and in that authority, the Court of Appeal
S S
reviewed the sentences for this offence.
T T
U U
CRT25/10.4.2015/IDM 4 DCCC 139/2015/Sentence
V V
A A
19. I also took into account HKSAR v Pham Van Hung,
CACC 14/2011. I will take a starting point of 3 years’
B B
imprisonment for Charge 2.
C C
20. Defendant, please stand up. You have pleaded guilty,
D you are entitled to a discount of one-third for your plea. After D
that discount is applied, Charge 1 is reduced to 1 year and
E E
4 months’ imprisonment. Charge 2 is reduced to 2 years’
imprisonment. I take into account the totality principle, and I
F F
order that four months of Charge 1 be served consecutively to
G Charge 2 and the balance concurrently, therefore the total G
sentence for both offences is 2 years and 4 months’
H imprisonment. H
I I
J J
A. J. Woodcock
K District Judge K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT25/10.4.2015/IDM 5 DCCC 139/2015/Sentence
V V
DCCC139/2015 HKSAR v. AVENDANO LUCILA ROQUE - LawHero