A A
B B
DCCC 660/2016
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 660 OF 2016 D
____________
E HKSAR E
v
F AMIGO RODOLFO DUMAQUETA F
(also known as RONALD L REYES,
G RONALD LOPEZ REYES, G
MARIO S PUNO,
H MENDOZA S ROMULO, H
RICKY S AMIGO,
I
ALVIN S LAYO, I
SOSA MARK RAZON,
NATIVIDAD ARNALDO,
J J
RODOLFO VALENCIA VILLOTA,
ISIDORO NIDO MALABANAN,
K RENATO BELANO PITONG, K
ALDO BALINGIT DELA CRUZ,
L FERDINAND VALENCIA VILLOTA, L
VILLOTA RODOLFA VALENCIA,
M VILLOTA RODOLFO, M
NATIVIDAD ARNALDO,
N
ROMULO S MENDOZA, N
RICKYS AMIGO,
MALBANAN ISIDORO NIDO
O O
and RAZON SOSA MAEK )
____________
P P
Before: HH Judge Dufton
Q Q
Date: 8 September 2016
R Present: Ms Irene Poon, SPP, of the Department of Justice, R
for HKSAR.
S
Mr Chu Kin Wing of Wong Yuen Chi & Co, S
assigned by the Director of Legal Aid, for the Defendant.
T T
U U
V V
-2-
A A
B B
Offences: (2) Breach of deportation order (違反遞解離境令)
(3) Attempted theft ( 企圖盜竊罪)
C C
D REASONS FOR SENTENCE D
E 1. Rodolfo Dumaqueta Amigo you have pleaded guilty to one E
charge of breach of deportation order, contrary to section 43(1)(a) of the
F F
Immigration Ordinance 1 (charge 2) and one charge of attempted theft,
G contrary to section 9 of the Theft Ordinance2(charge 3). G
H H
Attempted theft
I I
2. On 30 May this year PC 9557 and Sgt Kwan were patrolling
J in Terminal 1 of the Hong Kong International Airport when they J
observed you acting furtively outside A1 Bakery shop. You were seen
K K
constantly looking at customers inside the shop.
L L
3. One customer, Mr Guerra, was buying some food before
M M
taking his flight to Malaysia. Mr Guerra placed his suitcase and rucksack
N beside him while he chose some food. You entered the shop and using N
your coat as a shield opened the rucksack and took out Mr Guerra’s
O O
passport holder. You then left the shop.
P P
4. Once outside the shop you opened the passport holder, which
Q Q
contained Mr Guerra’s passport and boarding pass. You then went back
R
in the shop and when you tried to place the passport holder, passport and R
boarding pass on a food tray you were arrested by the police officers.
S S
T 1
T
Cap 115.
2
Cap 210.
U U
V V
-3-
A A
B B
You then tried to walk to Mr Guerra to give him back his property3. Your
C actions were all captured on CCTV. C
D Breach of deportation order D
E E
5. Fingerprint check revealed you were subject of a deportation
F order issued on 17 September 1986 4 when you were ordered to leave F
Hong Kong and prohibited from being in Hong Kong any time after 16
G G
September 1986. Travel index check revealed you had entered Hong
H Kong on 28 May this year using a passport5 in a different name from that H
in the deportation order.
I I
Mitigation
J J
K 6. In passing sentence I have carefully considered everything K
said on your behalf by Mr Chu together with your letter of mitigation6,
L L
including that in April this year one of your daughters died leaving you to
M look after five grandchildren and that your farm was repossessed when M
you failed to pay the mortgage. By reason of poverty you returned to
N N
Hong Kong. Mr Chu frankly tells the court you came to steal. You say
O you are remorseful and promise not to return to Hong Kong again. O
P P
Q Q
3
The charge of attempted theft was laid on the basis the defendant had a general intention to steal
R and that his appropriation of the passport holder was conditional on the property being worth R
taking. See Archbold Hong Kong 2016 at §22-64. Mr Chu confirmed the defendant’s plea of
guilty was on the basis he tried to steal anything worthy to him and that he tried to put the
S S
passport holder , passport and boarding pass on the food tray because they were not worthy to him.
4
MFI-2.
T 5
T
MFI-4
6
MFI-3.
U U
V V
-4-
A A
B B
Breach of deportation order
C C
7. There are no guideline sentences for breach of deportation
D order. The maximum sentence is 7 years imprisonment. Generally the D
starting point for a first breach is one of 27 months imprisonment (see for
E E
example HKSAR v Ta Dinh Son7).
F F
8. Since 1986, when you were deported for life, you have
G G
entered Hong Kong in breach of the deportation order on eleven previous
H occasions between 1989 and 2013 when you received sentences ranging H
between 6 months and 24 months imprisonment.
I I
9. Repeat offending is a significant aggravating feature
J J
justifying enhancement of the starting point of 27 months imprisonment.
K K
Mr Chu submits that an enhanced starting point of between 3½-4 years
L
imprisonment is appropriate8. L
M 10. In HKSAR v Ta Dinh Son the Court of Appeal held that for M
the 7th breach of a deportation order the appropriate sentence before
N N
discount for the plea of guilty was 4 years imprisonment. This is your
O 12th breach of a deportation order. O
P P
11. Your last appearance in court was on 12 December 2012
Q when you were sentenced to 2 years imprisonment9. Previous sentences Q
clearly have not deterred you from repeatedly returning to Hong Kong.
R R
S S
7
CACC 348/2013.
8
T At §2(a) of his written submission Mr Chu submits the starting point is 4 years whereas in court T
Mr Chu submitted 3½-4 years as the starting point.
9
DCCC 1013/2013. The reasons for sentence are included in the cases referred to by Mr Chu.
U U
V V
-5-
A A
B B
12. Taking into account this is your 12th breach of deportation
C order I am satisfied the appropriate sentence before discount for the plea C
of guilty is 4 years imprisonment. Giving you full credit for your plea of
D D
guilty reduces the sentence to 2 years and 8 months imprisonment.
E E
Attempted theft
F F
13. The theft is akin to that of pickpocketing. In HKSAR v Ngo
G G
Van Huy10 as applied in HKSAR v Duong Van Dung & others11the Court
H of Appeal confirmed the guideline sentence for pickpocketing after trial is H
12 to 15 months imprisonment for a first offender, where there are no
I I
aggravating features.
J J
14. Taking into account the theft took place at the airport where
K K
passengers are particularly vulnerable to this type of theft I am satisfied
L
the starting point after trial is 15 months imprisonment. L
M 15. The fact an accused is a persistent offender is an aggravating M
feature. You have eight similar offences for theft or attempted theft,
N N
which by the sentences imposed all appear to be pickpocketing offences.
O When you last appeared in court on 12 December 2012 you were also O
sentenced to 1 year and 2 months imprisonment for pickpocketing.
P P
Q 16. By reason of your persistent offending and that you came to Q
Hong Kong for the purpose of stealing I enhance the starting point by 9
R R
months to 2 years imprisonment. Giving you full credit for your plea of
S guilty the sentence is reduced to 1 year and 4 months imprisonment. S
T 10
T
[2005] 2 HKLRD 1.
11
CACC 284/2004.
U U
V V
-6-
A A
B B
Totality
C C
17. The two offences are separate and distinct for which
D consecutive sentences are appropriate. I am satisfied wholly consecutive D
sentences are appropriate12, making a total sentence to be served by you
E E
of 4 years imprisonment, which I am satisfied properly reflects your
F criminality on the two charges. F
G G
Humanitarian grounds
H H
13
18. In HKSAR v SM Kawsar Ahammed the Court of Appeal
I reduced the sentence by 3 months on the grounds that after the arrest of I
the appellant his wife passed away because of cancer leaving a young
J J
daughter without a parent. Whilst I am sympathetic to your family
K K
circumstances you came to Hong Kong in full knowledge that after the
L
death of your daughter you had to look after the grandchildren. I am L
satisfied there are no humanitarian grounds to reduce your sentence.
M M
Sentence
N N
O 19. You are convicted and sentenced as follows: O
P Charge 2 – 2 years and 8 months; and P
Q Charge 3 – 1 year and 4 months consecutive to charge 2. Q
R Total sentence: 4 years imprisonment. R
(D. J. DUFTON)
S District Judge S
T 12
T
See for example HKSAR v Ta Dinh Son CACC 348/2013.
13
CACC 282/2014.
U U
V V