DCCC490/2016 HKSAR v. MANIA JOLITO CAPINO - LawHero
DCCC490/2016
HKSAR v. MANIA JOLITO CAPINO
區域法院（刑事）Deputy District Judge Bina Chainrai27/1/2017
DCCC490/2016
A A
B DCCC 490/2016 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 490 OF 2016
E E
-----------------
F HKSAR F
v
G G
MANIA Jolito Capino (D1)
H H
-----------------
I I
J J
Before : Deputy District Judge Bina Chainrai in Court
K K
Date of Sentence : 27 January, 2017 at 3:23 p.m.
L Present : Mr. King CHAN, Public Prosecutor, for HKSAR/Director of L
Public Prosecution.
M M
Mr. Chan Wai-yin, Joe, instructed by Messrs. Chui &
N Lau (D.L.A.) for D1 N
Offences : (1) Attempted theft
O O
(2) Breach of deportation order
P P
Q Q
-------------------------------------------
R R
REASONS FOR SENTENCE
S
------------------------------------------- S
T T
U U
CRT20/27.1.2017/ DCCC 490/2016/Sentence
V V
-2-
A A
B B
1. The defendant (D1 on the indictment and so termed
C throughout) has admitted the two counts on the indictment that he faces, C
namely charge 1 of attempted theft, contrary to section 9 of the Theft
D D
Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200,
E the type of theft commonly referred to as pickpocketing, and charge 2 of E
breach of deportation order, contrary to section 43(1)(a) of the
F F
Immigration Ordinance, Cap. 115. By consent of all parties, mitigation and
G sentence on the charges admitted by D1 was adjourned until the conclusion G
of the trial of D2 on the indictment on charge 1.
H H
I Summary of Facts I
2. The ‘Summary of Fact’ admitted by D1 disclose that at about
J J
12.50 p.m. on 25/4/2016, a police officer keeping surveillance of the area
K in and around Platform No. 2 of the MTR Prince Edward Station, Kowloon, K
observed a group of persons including D1, all foreigners, standing
L L
together and chatting and appearing to pay attention to the personal
M belongings of passers-by. At approximately 1.02 p.m., a MTR train arrived M
at Platform No. 1. Passengers commenced boarding. The group of
N N
foreigners moved from Platform No. 2 to Platform No. 1, which was
O situated on the same level, and surrounded a Chinese male, Wong Hin-win, O
who was at the rear of a queue and waiting to board the train. One of the
P P
foreigners was seen to stand on the right of Mr. Wong and try to open the
Q bag Mr. Wong was carrying, but was unsuccessful. This foreigner than Q
walked ahead of Mr. Wong and was seen to slow down his movements
R R
whilst he was boarding the train. Another of the foreigners moved to the
S right of Mr. Wong and also tried unsuccessfully to open Mr. Wong’s bag. S
He then turned around and spoke to and nodded to D1and then moved to
T T
the front of Mr. Wong appearing to try to slow him down. D1 moved to the
U U
CRT20/27.1.2017/ DCCC 490/2016/Sentence
V V
-3-
A A
B B
right of Mr. Wong, and was seen to take a bag out from his breast pocket
C which he placed on top of Mr. Wong’s bag – he then reached his right hand C
into Mr. Wong’s bag. By this time, Mr. Wong, D1 and one of the other
D D
foreigners as well as the police officer had all boarded the train. The police
E officer intercepted D1 and the second foreigner inside the train carriage. E
He then arrested D1. Records kept by the Hong Kong Immigration
F F
Department establish that D1, using the name of MANIA JOLITO
G CAPINO arrived in Hong Kong on 19/4/2016 and was permitted to remain G
until 3/5/2016. A fingerprint check revealed that D1, using the name
H H
BANCAL Alvin C., had previously been convicted of attempted theft on
I 8/10/1991 and been deported from Hong Kong pursuant to a Deportation I
Order issued against him. He was deported on 19/4/1992.
J J
K 3. I was satisfied beyond all reasonable doubt that the facts K
admitted by D1 supported the 2 charges that he had admitted, and
L L
accordingly I convicted him of the two charges.
M M
Previous Convictions
N N
4. D1 has one previous conviction for attempted theft in 1991 –
O this was also a pickpocketing offence. He was sentenced to 9 months’ O
imprisonment and deported for life after serving his sentence pursuant to
P P
Deportation Order No. 57/92.
Q Q
Antecedent Statement & Mitigation
R R
5. The Antecedent Statement was read into the record by the
S Prosecution – no issue was taken on the contents. It disclosed that D1 was S
born in the Philippines in 1964 and is now aged 52 years. Little else was
T T
disclosed as he did not wish to disclose this.
U U
CRT20/27.1.2017/ DCCC 490/2016/Sentence
V V
-4-
A A
B B
C 6. In mitigation, Counsel submitted that D1 was married with 6 C
children aged between 16 and 31 years, 3 of whom are still schooling. He
D D
is the financial pillar of his family. In the Philippines, he ran a small
E grocery store and earned about 10,000 Pesos (equivalent to HK$1,500) E
each month. He frequently had prostate infections for which he needed to
F F
take medication. He is educated to high school level. He had pleaded
G guilty and was very remorseful. He had made a frank admission, saving G
the Court’s time and financial resources. There had been no loss. His last
H H
conviction was some 25 years ago. He sought leniency so he could return
I to his family in the Philippines. I
J J
Sentencing Considerations
K K
Attempted Theft
L L
7. The Courts when approaching sentencing in cases such as this
M look at the guidelines laid down in previous cases. There is clear guideline M
laid down in the case of HKSAR v. Ngo Van Huy, [2005] 2 HKLRD 1, that
N N
the usual starting point is 12 – 15 months’ imprisonment after trial for a
O first offender where there are no mitigating or aggravating features. The O
starting point can be adjusted upward for the presence of aggravating
P P
features such as the presence or use of a weapon or tool, where the offence
Q is committed in a place in which the public is at particular risk, where the Q
accused commits the offence in conjunction with another, where the
R R
accused is a repeat offender or a persistent one, etc.
S S
8. Here, the offence of attempted theft took place at a busy MTR
T T
station and on an MTR train. The Defendant committed the offence in
U U
CRT20/27.1.2017/ DCCC 490/2016/Sentence
V V
-5-
A A
B B
conjunction with another. Passengers on MTR trains are particularly
C vulnerable to this type of theft. He also acted in conjunction with others. C
D1 arrived in Hong Kong on 19/4/2016, and the present offence was
D D
committed on 25/4/2016, within a week of his arrival in Hong Kong.
E There is a lapse of time between his date of arrival and the date the offence E
was committed, and I am unable to draw the only and irresistible inference
F F
that he came to Hong Kong specifically to commit the offence of
G pickpocketing. I shall not make any adjustment to the starting point on the G
ground that he came to Hong Kong specifically to commit the offence of
H H
pickpocketing. Although D1 has a precious conviction of a similar nature,
I this was some 25 years ago, and I attach no weight to his previous I
conviction. Save for the plea of guilty, there is little else in mitigation. I
J J
am satisfied that the appropriate starting point after trial is 18 months’
K imprisonment. He is entitled to a one-third discount to reflect his plea. On K
Charge 1, D1 is sentenced to 12 months’ imprisonment.
L L
M Breach of deportation order M
9. There are no guideline sentences for offences of breach of
N N
deportation orders. The maximum sentence is 7 years’ imprisonment.
O Generally the starting point for a first breach is one of 27 months’ O
imprisonment (see for example HKSAR v. Cortez Emily Bisoy [2002] 2
P P
HKLRD 762 and HKSAR v. Ta Dinh Son, CACC 348/2013). This is the
Q first time that D1 has breached the deportation order. I adopt a starting Q
point of 27 months’ imprisonment for Charge 2, and discount it by
R R
one-third to reflect his plea. He is sentenced to 18 months’ imprisonment
S on Charge 2. S
T T
U U
CRT20/27.1.2017/ DCCC 490/2016/Sentence
V V
-6-
A A
B B
Totality
C 10. I have considered whether the sentences should be served C
consecutively or concurrently, either in whole or in part. I note that the
D D
immigration offence and the theft offence are completely different in
E nature and have no overlapping criminality. I have considered the authority E
of Ta Dinh Son, supra. The two offences are separate and distinct
F F
offences warranting consecutive sentences. I am of the view that even if
G the sentences for the two offences are to run wholly consecutively, the G
overall sentence does not breach the totality principle, and I am satisfied
H H
that the sentences properly reflect the criminality of the two offences. For
I these reasons, I order the sentences on Charges 1 and 2 to be served I
consecutively.
J J
K 11. D1 is sentenced as follows: K
Charge 1 12 months’ imprisonment.
L L
Charge 2 18 months’ imprisonment, to run consecutively to
M the sentence for Charge 1. M
N N
12. The total is therefore 30 months’ imprisonment.
O O
P P
Q Bina Chainrai Q
Deputy District Judge
R R
S S
T T
U U
CRT20/27.1.2017/ DCCC 490/2016/Sentence
V V
A A
B DCCC 490/2016 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 490 OF 2016
E E
-----------------
F HKSAR F
v
G G
MANIA Jolito Capino (D1)
H H
-----------------
I I
J J
Before : Deputy District Judge Bina Chainrai in Court
K K
Date of Sentence : 27 January, 2017 at 3:23 p.m.
L Present : Mr. King CHAN, Public Prosecutor, for HKSAR/Director of L
Public Prosecution.
M M
Mr. Chan Wai-yin, Joe, instructed by Messrs. Chui &
N Lau (D.L.A.) for D1 N
Offences : (1) Attempted theft
O O
(2) Breach of deportation order
P P
Q Q
-------------------------------------------
R R
REASONS FOR SENTENCE
S
------------------------------------------- S
T T
U U
CRT20/27.1.2017/ DCCC 490/2016/Sentence
V V
-2-
A A
B B
1. The defendant (D1 on the indictment and so termed
C throughout) has admitted the two counts on the indictment that he faces, C
namely charge 1 of attempted theft, contrary to section 9 of the Theft
D D
Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200,
E the type of theft commonly referred to as pickpocketing, and charge 2 of E
breach of deportation order, contrary to section 43(1)(a) of the
F F
Immigration Ordinance, Cap. 115. By consent of all parties, mitigation and
G sentence on the charges admitted by D1 was adjourned until the conclusion G
of the trial of D2 on the indictment on charge 1.
H H
I Summary of Facts I
2. The ‘Summary of Fact’ admitted by D1 disclose that at about
J J
12.50 p.m. on 25/4/2016, a police officer keeping surveillance of the area
K in and around Platform No. 2 of the MTR Prince Edward Station, Kowloon, K
observed a group of persons including D1, all foreigners, standing
L L
together and chatting and appearing to pay attention to the personal
M belongings of passers-by. At approximately 1.02 p.m., a MTR train arrived M
at Platform No. 1. Passengers commenced boarding. The group of
N N
foreigners moved from Platform No. 2 to Platform No. 1, which was
O situated on the same level, and surrounded a Chinese male, Wong Hin-win, O
who was at the rear of a queue and waiting to board the train. One of the
P P
foreigners was seen to stand on the right of Mr. Wong and try to open the
Q bag Mr. Wong was carrying, but was unsuccessful. This foreigner than Q
walked ahead of Mr. Wong and was seen to slow down his movements
R R
whilst he was boarding the train. Another of the foreigners moved to the
S right of Mr. Wong and also tried unsuccessfully to open Mr. Wong’s bag. S
He then turned around and spoke to and nodded to D1and then moved to
T T
the front of Mr. Wong appearing to try to slow him down. D1 moved to the
U U
CRT20/27.1.2017/ DCCC 490/2016/Sentence
V V
-3-
A A
B B
right of Mr. Wong, and was seen to take a bag out from his breast pocket
C which he placed on top of Mr. Wong’s bag – he then reached his right hand C
into Mr. Wong’s bag. By this time, Mr. Wong, D1 and one of the other
D D
foreigners as well as the police officer had all boarded the train. The police
E officer intercepted D1 and the second foreigner inside the train carriage. E
He then arrested D1. Records kept by the Hong Kong Immigration
F F
Department establish that D1, using the name of MANIA JOLITO
G CAPINO arrived in Hong Kong on 19/4/2016 and was permitted to remain G
until 3/5/2016. A fingerprint check revealed that D1, using the name
H H
BANCAL Alvin C., had previously been convicted of attempted theft on
I 8/10/1991 and been deported from Hong Kong pursuant to a Deportation I
Order issued against him. He was deported on 19/4/1992.
J J
K 3. I was satisfied beyond all reasonable doubt that the facts K
admitted by D1 supported the 2 charges that he had admitted, and
L L
accordingly I convicted him of the two charges.
M M
Previous Convictions
N N
4. D1 has one previous conviction for attempted theft in 1991 –
O this was also a pickpocketing offence. He was sentenced to 9 months’ O
imprisonment and deported for life after serving his sentence pursuant to
P P
Deportation Order No. 57/92.
Q Q
Antecedent Statement & Mitigation
R R
5. The Antecedent Statement was read into the record by the
S Prosecution – no issue was taken on the contents. It disclosed that D1 was S
born in the Philippines in 1964 and is now aged 52 years. Little else was
T T
disclosed as he did not wish to disclose this.
U U
CRT20/27.1.2017/ DCCC 490/2016/Sentence
V V
-4-
A A
B B
C 6. In mitigation, Counsel submitted that D1 was married with 6 C
children aged between 16 and 31 years, 3 of whom are still schooling. He
D D
is the financial pillar of his family. In the Philippines, he ran a small
E grocery store and earned about 10,000 Pesos (equivalent to HK$1,500) E
each month. He frequently had prostate infections for which he needed to
F F
take medication. He is educated to high school level. He had pleaded
G guilty and was very remorseful. He had made a frank admission, saving G
the Court’s time and financial resources. There had been no loss. His last
H H
conviction was some 25 years ago. He sought leniency so he could return
I to his family in the Philippines. I
J J
Sentencing Considerations
K K
Attempted Theft
L L
7. The Courts when approaching sentencing in cases such as this
M look at the guidelines laid down in previous cases. There is clear guideline M
laid down in the case of HKSAR v. Ngo Van Huy, [2005] 2 HKLRD 1, that
N N
the usual starting point is 12 – 15 months’ imprisonment after trial for a
O first offender where there are no mitigating or aggravating features. The O
starting point can be adjusted upward for the presence of aggravating
P P
features such as the presence or use of a weapon or tool, where the offence
Q is committed in a place in which the public is at particular risk, where the Q
accused commits the offence in conjunction with another, where the
R R
accused is a repeat offender or a persistent one, etc.
S S
8. Here, the offence of attempted theft took place at a busy MTR
T T
station and on an MTR train. The Defendant committed the offence in
U U
CRT20/27.1.2017/ DCCC 490/2016/Sentence
V V
-5-
A A
B B
conjunction with another. Passengers on MTR trains are particularly
C vulnerable to this type of theft. He also acted in conjunction with others. C
D1 arrived in Hong Kong on 19/4/2016, and the present offence was
D D
committed on 25/4/2016, within a week of his arrival in Hong Kong.
E There is a lapse of time between his date of arrival and the date the offence E
was committed, and I am unable to draw the only and irresistible inference
F F
that he came to Hong Kong specifically to commit the offence of
G pickpocketing. I shall not make any adjustment to the starting point on the G
ground that he came to Hong Kong specifically to commit the offence of
H H
pickpocketing. Although D1 has a precious conviction of a similar nature,
I this was some 25 years ago, and I attach no weight to his previous I
conviction. Save for the plea of guilty, there is little else in mitigation. I
J J
am satisfied that the appropriate starting point after trial is 18 months’
K imprisonment. He is entitled to a one-third discount to reflect his plea. On K
Charge 1, D1 is sentenced to 12 months’ imprisonment.
L L
M Breach of deportation order M
9. There are no guideline sentences for offences of breach of
N N
deportation orders. The maximum sentence is 7 years’ imprisonment.
O Generally the starting point for a first breach is one of 27 months’ O
imprisonment (see for example HKSAR v. Cortez Emily Bisoy [2002] 2
P P
HKLRD 762 and HKSAR v. Ta Dinh Son, CACC 348/2013). This is the
Q first time that D1 has breached the deportation order. I adopt a starting Q
point of 27 months’ imprisonment for Charge 2, and discount it by
R R
one-third to reflect his plea. He is sentenced to 18 months’ imprisonment
S on Charge 2. S
T T
U U
CRT20/27.1.2017/ DCCC 490/2016/Sentence
V V
-6-
A A
B B
Totality
C 10. I have considered whether the sentences should be served C
consecutively or concurrently, either in whole or in part. I note that the
D D
immigration offence and the theft offence are completely different in
E nature and have no overlapping criminality. I have considered the authority E
of Ta Dinh Son, supra. The two offences are separate and distinct
F F
offences warranting consecutive sentences. I am of the view that even if
G the sentences for the two offences are to run wholly consecutively, the G
overall sentence does not breach the totality principle, and I am satisfied
H H
that the sentences properly reflect the criminality of the two offences. For
I these reasons, I order the sentences on Charges 1 and 2 to be served I
consecutively.
J J
K 11. D1 is sentenced as follows: K
Charge 1 12 months’ imprisonment.
L L
Charge 2 18 months’ imprisonment, to run consecutively to
M the sentence for Charge 1. M
N N
12. The total is therefore 30 months’ imprisonment.
O O
P P
Q Bina Chainrai Q
Deputy District Judge
R R
S S
T T
U U
CRT20/27.1.2017/ DCCC 490/2016/Sentence
V V