DCCC669/2016 HKSAR v. LACHARON WILSON FERNANDEZ AND ANOTHER - LawHero
DCCC669/2016
HKSAR v. LACHARON WILSON FERNANDEZ AND ANOTHER
區域法院（刑事）HH Judge Yiu12/9/2016
DCCC669/2016
A A
DCCC 669/2016
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 669 OF 2016 C
D ---------------------- D
E HKSAR E
v
F F
Lacharon Wilson Fernandez (D1)
G G
Dacidilla Josehp Erwin Tagalog
H (also known as H
Dequillo Robert Compra,
I Varela Guillermo Delapena and I
Varela Guillermo De La Pena) (D2)
J J
----------------------
K Before: HH Judge Yiu K
Date: 13 September 2016 at 10.46 am
L Present: Mr Wilson Choi, PP of the Department of Justice, for HKSAR L
Mr Geoffrey Booth, of Haldanes, assigned by the Director of Legal
M Aid, for both defendants M
Offence: (1) Theft (盜竊罪)
N (2) Breach of deportation order (違反遞解離境令) N
(3) Making a false representation to an Immigration Officer or
O
Immigration Assistant lawfully acting under or in the execution O
of Part II of the Immigration Ordinance (向根據或為執行《入
境條例》第II部而合法行事的入境事務主任或入境事務助理
P P
員作出虛假的申述)
Q Q
---------------------
R Reasons for Sentence R
S --------------------- S
T T
U U
CRT28/13.9.2016/SC 1 DCCC 669/2016/Sentence
V V
A A
1. Both defendants pleaded guilty to the joint charge of theft.
B 2nd defendant also pleaded guilty to the charges of breach of deportation order and B
making a false representation to an Immigration Officer.
C C
D 2. The facts were that at about 4.30 pm on 11 May 2016, Mr Yu D
withdrew cash of 100,000 from a bank in Hunghom and put the cash into an
E E
envelope. Later, he got on a bus, heading towards Tsim Sha Tsui. After he got
F on the bus, he noticed the 1st defendant standing on his left while the F
2nd defendant on his right. There were also 10-odd passengers standing on the
G G
lower deck of the bus. Upon arriving at a bus stop at Gillies Avenue South, the
H 1st defendant knelt down and tapped Mr Yu’s left leg repeatedly. Then H
1st defendant got up and got off the bus.
I I
J 3. Suddenly, Mr Yu heard someone told the bus driver not to drive J
away. Then he noticed the said envelope was missing. He immediately got off
K K
the bus and saw the 1st defendant being intercepted by police officers whom
L happened to see the 1st and the 2nd defendant and others acting suspiciously L
before they got on the bus and had chased after the bus. Upon search of
M M
1st defendant, no cash was found on him.
N N
4. Mr Yu then returned to the bus to search for his money. He then saw
O O
the 2nd defendant dropping the said envelope onto the floor near the bottom of the
P staircase of the bus. Mr Yu retrieved the said envelope and found his money still P
inside.
Q Q
R 5. Both defendants were then arrested and cautioned. Upon R
investigation, it was found that a deportation order dated 15 December 2015 was
S S
issued against the 2nd defendant, and it was found that the 2nd defendant entered
T Hong Kong on 28 April 216 with a passport bearing the birthday of 2 July 1973. T
U U
CRT28/13.9.2016/SC 2 DCCC 669/2016/Sentence
V V
A A
6. Upon further check, it was found that both defendants entered
B Hong Kong at the international airport at 9.31 and 9.32 am respectively on 28 B
April 2016, and both defendants left Hong Kong through Lowu Terminal at about
C C
10.45 am on 11 May 2016. D1 returned to Hong Kong at 2.02 pm and D2
D returned at 1.46 pm on the same day. D
E E
7. In the video-recorded interview, 2nd defendant admitted under
F caution that his real name was Dequillo Robert and his genuine birthday should be F
4 April 1972 instead of 2 July 1973. He further admitted that he had changed his
G G
name to Dacidilla.
H H
8. Both defendants now admit acting in concert to steal the property of
I I
Mr Yu.
J J
9. 1st defendant, aged 42, he had a clear criminal record while the
K K
2nd defendant, aged 44, had a previous conviction of attempted theft where he was
L sentenced to 8 months’ imprisonment in July 2015. L
M M
10. Mr Booth submitted that the 1st defendant was a driver of tricycle in
N Philippines, earning about 4,500 pesos per month and had two children to support N
but he had difficulty in meeting all expenses. For the 2nd defendant, he was a
O O
carpenter in Philippines, earning about 6,500 pesos per month. However, he had
P a big family of eight family members relying on him to support. He had a very P
heavy financial burden like the 1st defendant, and both defendants committed the
Q Q
present offence in the hope of relieving their financial burden.
R R
11. Mr Booth further submitted that both defendants admitted the offence
S S
at the outset and saving court’s costs and time, and the victim did not suffer any
T financial loss as the money was finally recovered. 2nd defendant also put in a T
letter, telling the court that the health condition of his aging parents got worsening
U U
CRT28/13.9.2016/SC 3 DCCC 669/2016/Sentence
V V
A A
and he deeply regretted for his wrongdoings where his family would suffer from it
B as well. As both defendants pleaded guilty, they hope for a lenient sentence. B
C C
12. Theft is a serious offence, particularly pickpocketing where the Court
D of Appeal in HKSAR v Ngo Van Huy CACC 107/2004 had set down the guideline D
of 12 to 15 months’ imprisonment after trial, which is appropriate for a first-time
E E
offender but this will increase along with the existence of aggravating features
F such as the offence taking place in a crowded area like the present case inside a F
bus, other factors including organised and professional activities; pickpockets from
G G
overseas, and also when there was more than a person taking part in the offence.
H H
13. In the present case, both defendants acted in concert to steal the
I I
money from the victim inside a bus and the amount was substantial. The facts
J were serious. I take the starting point of 15 months and the aggravating factors J
altogether as stated above for another 12 months. That makes a total of
K K
27 months’ imprisonment. Upon guilty plea, that be reduced to 18 months’
L imprisonment. L
M M
14. And for the 2nd defendant, it is the second time within a short period.
N I would have set a higher starting point but for the 2nd defendant’s timely guilty N
plea and his remorseful attitude shown to the court, therefore I will still sentence
O O
the 2nd defendant on the 1st charge of 18 months instead.
P P
15. And for the breach of deportation order and making false
Q Q
representation to immigration officers, the Court of Appeal in HKSAR v
R Ta Dinh Son CACC 348/2013 had gone through some other cases and concluded R
that a starting point of 27 months’ imprisonment is appropriate for the offence of
S S
breach of deportation order. I would adopt the same and that be reduced to
T 18 months upon guilty plea by the 2nd defendant. T
U U
CRT28/13.9.2016/SC 4 DCCC 669/2016/Sentence
V V
A A
16. As to the 3rd charge of making false representation where the
B 2nd defendant had changed the birthday to evade the detection of being the subject B
of a deportation order, the facts were also serious. I would take a 12 months’
C C
imprisonment as the starting point, reducing it to 8 months upon guilty plea.
D D
17. Lastly, by applying totality principle, I consider that altogether 28
E E
months’ imprisonment is appropriate for the 2nd defendant, and the sentence
F would be as follows: F
1st defendant
G G
1st charge: 18 months’ imprisonment.
H H
2nd defendant
I I
1st charge: 18 months’ imprisonment;
J 2nd charge: 18 months’ imprisonment; J
3rd charge: 8 months’ imprisonment;
K K
The 2nd and the 3rd charges be run concurrently, of which 10 months be run
L consecutive to the 1st charge, that makes a total of 28 months’ imprisonment. L
M M
18. So the 1st defendant, 18 months’ imprisonment. And the
N 2nd defendant, 28 months’ imprisonment for all charges. N
O O
(Yiu)
P District Judge P
Q Q
R R
S S
T T
U U
CRT28/13.9.2016/SC 5 DCCC 669/2016/Sentence
V V
A A
DCCC 669/2016
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 669 OF 2016 C
D ---------------------- D
E HKSAR E
v
F F
Lacharon Wilson Fernandez (D1)
G G
Dacidilla Josehp Erwin Tagalog
H (also known as H
Dequillo Robert Compra,
I Varela Guillermo Delapena and I
Varela Guillermo De La Pena) (D2)
J J
----------------------
K Before: HH Judge Yiu K
Date: 13 September 2016 at 10.46 am
L Present: Mr Wilson Choi, PP of the Department of Justice, for HKSAR L
Mr Geoffrey Booth, of Haldanes, assigned by the Director of Legal
M Aid, for both defendants M
Offence: (1) Theft (盜竊罪)
N (2) Breach of deportation order (違反遞解離境令) N
(3) Making a false representation to an Immigration Officer or
O
Immigration Assistant lawfully acting under or in the execution O
of Part II of the Immigration Ordinance (向根據或為執行《入
境條例》第II部而合法行事的入境事務主任或入境事務助理
P P
員作出虛假的申述)
Q Q
---------------------
R Reasons for Sentence R
S --------------------- S
T T
U U
CRT28/13.9.2016/SC 1 DCCC 669/2016/Sentence
V V
A A
1. Both defendants pleaded guilty to the joint charge of theft.
B 2nd defendant also pleaded guilty to the charges of breach of deportation order and B
making a false representation to an Immigration Officer.
C C
D 2. The facts were that at about 4.30 pm on 11 May 2016, Mr Yu D
withdrew cash of 100,000 from a bank in Hunghom and put the cash into an
E E
envelope. Later, he got on a bus, heading towards Tsim Sha Tsui. After he got
F on the bus, he noticed the 1st defendant standing on his left while the F
2nd defendant on his right. There were also 10-odd passengers standing on the
G G
lower deck of the bus. Upon arriving at a bus stop at Gillies Avenue South, the
H 1st defendant knelt down and tapped Mr Yu’s left leg repeatedly. Then H
1st defendant got up and got off the bus.
I I
J 3. Suddenly, Mr Yu heard someone told the bus driver not to drive J
away. Then he noticed the said envelope was missing. He immediately got off
K K
the bus and saw the 1st defendant being intercepted by police officers whom
L happened to see the 1st and the 2nd defendant and others acting suspiciously L
before they got on the bus and had chased after the bus. Upon search of
M M
1st defendant, no cash was found on him.
N N
4. Mr Yu then returned to the bus to search for his money. He then saw
O O
the 2nd defendant dropping the said envelope onto the floor near the bottom of the
P staircase of the bus. Mr Yu retrieved the said envelope and found his money still P
inside.
Q Q
R 5. Both defendants were then arrested and cautioned. Upon R
investigation, it was found that a deportation order dated 15 December 2015 was
S S
issued against the 2nd defendant, and it was found that the 2nd defendant entered
T Hong Kong on 28 April 216 with a passport bearing the birthday of 2 July 1973. T
U U
CRT28/13.9.2016/SC 2 DCCC 669/2016/Sentence
V V
A A
6. Upon further check, it was found that both defendants entered
B Hong Kong at the international airport at 9.31 and 9.32 am respectively on 28 B
April 2016, and both defendants left Hong Kong through Lowu Terminal at about
C C
10.45 am on 11 May 2016. D1 returned to Hong Kong at 2.02 pm and D2
D returned at 1.46 pm on the same day. D
E E
7. In the video-recorded interview, 2nd defendant admitted under
F caution that his real name was Dequillo Robert and his genuine birthday should be F
4 April 1972 instead of 2 July 1973. He further admitted that he had changed his
G G
name to Dacidilla.
H H
8. Both defendants now admit acting in concert to steal the property of
I I
Mr Yu.
J J
9. 1st defendant, aged 42, he had a clear criminal record while the
K K
2nd defendant, aged 44, had a previous conviction of attempted theft where he was
L sentenced to 8 months’ imprisonment in July 2015. L
M M
10. Mr Booth submitted that the 1st defendant was a driver of tricycle in
N Philippines, earning about 4,500 pesos per month and had two children to support N
but he had difficulty in meeting all expenses. For the 2nd defendant, he was a
O O
carpenter in Philippines, earning about 6,500 pesos per month. However, he had
P a big family of eight family members relying on him to support. He had a very P
heavy financial burden like the 1st defendant, and both defendants committed the
Q Q
present offence in the hope of relieving their financial burden.
R R
11. Mr Booth further submitted that both defendants admitted the offence
S S
at the outset and saving court’s costs and time, and the victim did not suffer any
T financial loss as the money was finally recovered. 2nd defendant also put in a T
letter, telling the court that the health condition of his aging parents got worsening
U U
CRT28/13.9.2016/SC 3 DCCC 669/2016/Sentence
V V
A A
and he deeply regretted for his wrongdoings where his family would suffer from it
B as well. As both defendants pleaded guilty, they hope for a lenient sentence. B
C C
12. Theft is a serious offence, particularly pickpocketing where the Court
D of Appeal in HKSAR v Ngo Van Huy CACC 107/2004 had set down the guideline D
of 12 to 15 months’ imprisonment after trial, which is appropriate for a first-time
E E
offender but this will increase along with the existence of aggravating features
F such as the offence taking place in a crowded area like the present case inside a F
bus, other factors including organised and professional activities; pickpockets from
G G
overseas, and also when there was more than a person taking part in the offence.
H H
13. In the present case, both defendants acted in concert to steal the
I I
money from the victim inside a bus and the amount was substantial. The facts
J were serious. I take the starting point of 15 months and the aggravating factors J
altogether as stated above for another 12 months. That makes a total of
K K
27 months’ imprisonment. Upon guilty plea, that be reduced to 18 months’
L imprisonment. L
M M
14. And for the 2nd defendant, it is the second time within a short period.
N I would have set a higher starting point but for the 2nd defendant’s timely guilty N
plea and his remorseful attitude shown to the court, therefore I will still sentence
O O
the 2nd defendant on the 1st charge of 18 months instead.
P P
15. And for the breach of deportation order and making false
Q Q
representation to immigration officers, the Court of Appeal in HKSAR v
R Ta Dinh Son CACC 348/2013 had gone through some other cases and concluded R
that a starting point of 27 months’ imprisonment is appropriate for the offence of
S S
breach of deportation order. I would adopt the same and that be reduced to
T 18 months upon guilty plea by the 2nd defendant. T
U U
CRT28/13.9.2016/SC 4 DCCC 669/2016/Sentence
V V
A A
16. As to the 3rd charge of making false representation where the
B 2nd defendant had changed the birthday to evade the detection of being the subject B
of a deportation order, the facts were also serious. I would take a 12 months’
C C
imprisonment as the starting point, reducing it to 8 months upon guilty plea.
D D
17. Lastly, by applying totality principle, I consider that altogether 28
E E
months’ imprisonment is appropriate for the 2nd defendant, and the sentence
F would be as follows: F
1st defendant
G G
1st charge: 18 months’ imprisonment.
H H
2nd defendant
I I
1st charge: 18 months’ imprisonment;
J 2nd charge: 18 months’ imprisonment; J
3rd charge: 8 months’ imprisonment;
K K
The 2nd and the 3rd charges be run concurrently, of which 10 months be run
L consecutive to the 1st charge, that makes a total of 28 months’ imprisonment. L
M M
18. So the 1st defendant, 18 months’ imprisonment. And the
N 2nd defendant, 28 months’ imprisonment for all charges. N
O O
(Yiu)
P District Judge P
Q Q
R R
S S
T T
U U
CRT28/13.9.2016/SC 5 DCCC 669/2016/Sentence
V V