DCCC384/2017 HKSAR v. DE LA CRUZ ANGELO PORTO AND OTHERS - LawHero
DCCC384/2017
HKSAR v. DE LA CRUZ ANGELO PORTO AND OTHERS
區域法院（刑事）Deputy District Judge A Yim27/8/2017
DCCC384/2017
A A
B B
DCCC 384/2017
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 384 OF 2017 E
F F
---------------------
G HKSAR G
v
H H
DE LA CRUZ ANGELO PORTO (D1)
(also known as Angel S Cabalza,
I I
Antonio J Tubon, Jimmy L De VERA,
Jaime De Vera LANSANGAN,
J Roberto Salome RAZON, J
Jimmy Legarda DABUET,
K Rodolfo Jr Bamba PATRIARCA, K
Rodolfo Jr. Bamba PATRIARCA,
L Nino Danilo De Leon PARIAL, and L
Emmanuel Trinidad DOMINGO)
M TALAO CHRISTOPHER DOMINGO (D2) M
NIDUAZA SHIELA MARY MOYA (D3)
N N
---------------------
O O
Before: Deputy District Judge A Yim in court
P P
Date: 28 August 2017
Q Present: Mr King Chan, Public Prosecutor, for HKSAR/Director of Q
Public Prosecution
R R
Mr Lau Leong Ho, Ricky, of Tsang, Chan & Woo, assigned
S by the Director of Legal Aid, for D1 to D3 S
Offences: [1] Attempted theft (企圖盜竊罪) - D1 to D3
T T
[2] Breach of deportation order (違反遞解離境令) - D1
U U
V V
-2-
A A
B B
C ---------------------------------------- C
REASONS FOR SENTENCE
D D
----------------------------------------
E E
1. The defendants were jointly charged with one count of
F F
attempted theft, contrary to section 9 of the Theft Ordinance, Cap 210 and
G section 159G of the Crimes Ordinance, Cap 200. G
H H
2. While the first defendant was further charged with breach of
I a deportation order, contrary to section 43(1)(a) of the Immigration I
Ordinance, Cap 115.
J J
K 3. The defendants pleaded guilty to their respective charge(s) K
and admitted the facts. They were convicted accordingly.
L L
M Summary of facts M
N N
4. D1 entered Hong Kong at 6:50 pm on 18 January 2017 via
O Hong Kong International Airport under the name “DE LA CRUZ, O
ANGELO PORTO”. D2 and D3 entered Hong Kong at 11:54 pm on the
P P
same day via Hong Kong International Airport.
Q Q
Charge one (D1 – D3)
R R
S 5. At about 5:45 pm on 19 January 2017 (Thursday), D1 to D3 S
were acting furtively (watching the belongings and bags of passers-by)
T T
inside MTR Causeway Bay station and MTR Wan Chai station. They
U U
V V
-3-
A A
B B
travelled from Causeway Bay station to Wan Chai station, after lingering
C a while without exiting boarded the MTR train and returned to Causeway C
Bay station again.
D D
E 6. Later at about 6:18 pm, while travelling on the escalator DE1 E
up to exit D of the Causeway Bay station, the three defendants stood behind
F F
the victim at different positions, acted together attempted to steal from the
G victim. D1 who was directly behind the victim unzipping the victim’s G
rucksack from behind and inserting his right hand therein. D3 was standing
H H
next to D1 watching while D2 was one step behind the two defendants
I spreading his arms and holding onto handrails of both sides. As the victim I
getting near to the top of the escalator, D1 withdrew his hand from the
J J
rucksack.
K K
7. This attempted theft by pickpocketing was witnessed by
L L
SPC47586. The officer called for assistance and the defendants were
M intercepted and arrested. M
N N
Charge two (D1)
O O
8. Fingerprint comparison reveals that D1 is the subject of a
P P
deportation order dated 11 May 1988 and issued against him under another
Q name of his. The deportation order required D1 to leave Hong Kong and Q
prohibited him from being in Hong Kong at any time thereafter. The order
R R
was certified to have been served on him on 7 June 1988 and is still in force.
S He was first deported to the Philippines on 1 July 1988. S
T T
U U
V V
-4-
A A
B B
9. Between 18 January 2017 and 19 January 2017, D1 was in
C Hong Kong in contravention of the deportation order against him. C
D D
Background &Mitigation
E E
D1
F F
G 10. D1 aged 68, a Filipino came to Hong Kong as a visitor. He G
has 8 previous convictions all related to dishonesty since 1982, and among
H H
which involving 12 counts of breach of deportation order since he was
I served the deportation order in 1988. He was last released from prison in I
September 2015.
J J
K 11. He is a widower, his children within the wedlock all grown up K
and have their own family. The defendant is living with his girlfriend and
L L
their daughter aged 13 in Philippines. He used to be a taxi driver and then
M changed to be a tailor assistant earning about HK$1,000 per month. M
N N
12. He is the sole breadwinner of the family, because of financial
O needs, he borrowed money from loan shark to come to Hong Kong to O
commit pickpocketing. He did not know the other defendants in
P P
Philippines, they met in a guesthouse in Hong Kong, and lined up to
Q commit the crime together. He knew it was a serious offence, he pleaded Q
guilty, he would not commit a crime again, he was of old age and urged
R R
the court for leniency.
S S
T T
U U
V V
-5-
A A
B B
D2
C C
13. D2 aged 33, a Filipino came to Hong Kong as a visitor. He
D D
has a clear record. He is married with 2 daughters aged 1 and 3 years old.
E He lives with his wife, children, his mother, his step-father and his E
grandmother in Philippines. Only he and the step-father are working. He
F F
last worked as a driver and earned around HK$2,300 per month.
G G
14. Being misled that he could work in Hong Kong even as a
H H
visitor, he borrowed money to come to Hong Kong to work, in order to
I earn more for his family. He met D1 and D3 in a guesthouse in Hong Kong, I
and lined up to commit the crime together. He knew it was a serious
J J
offence, he pleaded guilty, he was deeply regretted for his wrong and urged
K the court for leniency. K
L L
D3
M M
15. D3 aged 39, a Filipino came to Hong Kong as a visitor. She
N N
has a clear record. She is married with 2 children aged 21 and 20 years old,
O both are student. The husband is a drug addict and suffered from drugs O
stimulated illness and without earning capacity. She was the sole
P P
breadwinner earning about HK$1,000 odd per month.
Q Q
16. Being misled that she could work in Hong Kong even as a
R R
visitor, she borrowed money to come to Hong Kong to work, in order to
S earn more for her children’s education. She met D1 and D2 in a guesthouse S
in Hong Kong, and lined up to commit the crime together. She knew it
T T
was a serious offence, she pleaded guilty, she was deeply regretted for her
U U
V V
-6-
A A
B B
wrong and urged the court for leniency. The children also wrote mitigation
C letters for their mother. C
D D
Sentence
E E
17. In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, it was said
F F
that theft by pickpocketing is a type of offence that society severely and
G rightly condemns, and that a guideline sentence of 12 to 15 months’ G
imprisonment after trial is appropriate for a first time offender. That,
H H
however, is subject to the existence of aggravating features, eg outsider
I offender, joint enterprise, crowded public places. I
J J
18. It is recognised that “foreigners who make lightning forays in
K Hong Kong with the object of making quick profits from criminal ventures K
must be discouraged” R v Ambas and Timzon CACC 441/1994. If an
L L
offender comes to Hong Kong with a travelling document accepted by the
M Hong Kong Immigration Department specifically to commit serious crime, M
this constitutes an aggravating factor.
N N
O 19. D1 came to Hong Kong to commit pickpocketing, while D2 O
and D3 said they were misled that they could be able to obtain employment
P P
in Hong Kong as visitor. Even accepting the mitigation of D2 and D3, they
Q should have learnt the condition imposed by the immigration after they Q
entered Hong Kong. According to their mitigation, very quickly
R R
afterwards they lined up with D1 and committed the offence with a view
S to make quick money within 24 hours of their arrival. S
T T
U U
V V
-7-
A A
B B
20. In HKSAR v Chan Mei-yee Carman [2010] 4 HKC 571, the
C court held that the attempted theft justified a starting point of 15 months’ C
imprisonment, but that this could be increased to an overall sentence of 30
D D
months’ imprisonment once the aggravating features, which included the
E commission of the offence by more than one offender in a busy street and E
a bad criminal record, were factored in.
F F
G 21. In HKSAR v Cheng Wai Leung CACC 358/2016, the G
defendant jointly charged with Lam for stealing by pickpocketing a
H H
smartphone on a street in Mongkok. The Court of Appeal upheld a final
I starting point of 30 months, of which started with 15 months and further I
enhancement of 3 months for crowded place, 3 more months for joint
J J
enterprise, and 9 more months for persistent re-offending.
K K
22. The defence also referred me to the case of HKSAR v Fabroa
L L
Marites Bacus & others DCCC 960/2011 which was about four defendants
M jointly charged with pickpocketing at a crowded shopping centre on the M
next day they arrived in Hong Kong. The sentencing judge adopted the
N N
basic starting point of 15 months and enhanced to 30 months for the
O defendants with previous conviction records and enhanced to 24 months O
for the one with clear record.
P P
Q 23. In the present case, the attempted theft committed during rush Q
hours in a MTR station, a place in which the public was at particular risk,
R R
by the three defendants in an organised and professional manner. The
S defendants were seen looking for their target inside the MTR stations for S
more than half hour, before they approached the victim. The criminality
T T
of an attempted theft is no less than a completed theft.
U U
V V
-8-
A A
B B
C 24. Having considered the whole circumstances, I am with the C
view that for the attempted theft in the present case it is justified to start
D D
with 15 months’ imprisonment, then enhanced it by 3 months for the
E commission in the crowded MTR station, a further 3 months for joint E
enterprise and a further 3 months for outside offender, making a total of 24
F F
months for D2 and D3. The two defendants indicated their plea at the
G earliest opportunity, they were entitled to 1/3 discount, however, I do not G
consider there to be any mitigating factors that called for further deduction.
H H
I 25. In the case of D1, he had 8 previous convictions related to I
dishonesty (4 of which is pickpocketing) since 1982, I consider the fact of
J J
his repetitive offending for the same type of offence amount to an
K aggravating factor and enhanced to a further 3 months, making a total of K
27 months.
L L
M 26. The maximum sentence for breach of deportation order is 7 M
years. In HKSAR v Wabhi Tri-Wahyu also known as Wahyu Wabhi Tri,
N N
Supri Yatnak and Supriyatnak CACC 345/2014, Macrae JA confirmed that
O the starting point of 27 months’ imprisonment appeared to have been in O
line with Court of First Instance appellate authority for a first breach of a
P P
deportation order. In HKSAR v Pham Wan Hung CACC14/2011, the Court
Q of Appeal considered for a defendant with four previous similar conviction Q
of breach of deportation order, the appropriate starting should be 42 months’
R R
imprisonment.
S S
27. In HKSAR v Cristian Alberto Cardona Quinchia CACC
T T
106/2016, McWalters JA was in the opinion that where different
U U
V V
-9-
A A
B B
culpability between the breach of deportation order and other criminal
C charges, the general principles still applied in considering the overall C
sentence. “It may well be appropriate in many case for the sentences to be
D D
largely, if not wholly, consecutive in order to strengthen the bite of the
E breach of deportation order offence and provide a meaningful deterrent to E
persons against whom such orders are made from breaching those orders.”
F F
G
28. The deportation order was served to D1 in 1988, since then he G
has been convicted on 12 counts of breach of a deportation order. The
H H
deportation order was issued against the defendant under the name “Mr
I Angel S Cabalza alias Antonio J Tubon”, the then date of birth being 27 I
February 1947.
J J
29. The prosecution submitted the Reasons for sentence of his last
K K
criminal case DCCC 798/2013 and to clarify his date of birth I also called
L L
for the case file. It revealed that he had eight different names known to
M
Hong Kong Immigration Department by then. He obtained a new and M
genuine passport from the Philippine authorities on 28 June 2012 in the
N N
new name of Emmanuel Trinidad Domingo, date of birth being 26
O September 1954 and said to be aged 58. After his arrest for pickpocketing O
on 16 July 2013, it was later found out that he had entered and left Hong
P P
Kong on 6 occasions between 24 July 2012 and 18 June 2013.
Q Q
30. He was last released from prison in September 2015. Upon
R R
his arrest on 19 January 2017, it was found that the defendant was issued
S
with another Philippine passport in another name unknown to the Hong S
Kong Immigration Department, this time the date of birth being 13 January
T T
1949. The said passport was issued on 27 July 2016. The prosecution said
U U
V V
- 10 -
A A
B B
no further investigation would be carried out for the discrepancies noted
C from his various passports. I indicated to the defence that with the different C
date of birth provided by the defendant no weight would be given to the
D D
mitigation that D1 is of old age. The defence did not submit further on his
E age. E
F F
31. The defendant was convicted on 12 counts of breach of
G
deportation order. By his last case in DCCC 789/2013, he had been G
convicted on 5 counts of breach of deportation order, the sentencing judge
H H
in his last case adopted a starting point of 3 years for each of his breach of
I deportation order, after allowing discount for his plea, the sentence was I
ordered to run partly concurrent, making a total of 27 months. Yet the
J J
defendant committed further breach again after his release in September
K 2015 by obtaining passport in new name again. His repetitive re-offending K
called for deterrence. After consideration, I adopted 45 months’
L L
imprisonment as the starting point for charge 2.
M M
32. D1 indicated his plea of guilty in the earliest opportunity, he
N N
was entitled to 1/3 discount. I do not consider there to be any mitigating
O factor that called for further deduction. Unlike the defendant in Pham Van O
Hung whose offences were both immigration offence, the two offences in
P P
the present case are of different nature.
Q Q
33. In his last case DCCC 798/2013, in addition to the 7 counts of
R R
breach of deportation order, the defendant was given another consecutive
S sentence of 12 months for pickpocketing, ie a total of 39 months. Taking S
into account of the totality consideration, I consider it is appropriate to have
T T
U U
V V
- 11 -
A A
B B
his sentence to run partly concurrent and partly consecutive, making a total
C of 42 months’ imprisonment. C
D D
Order
E E
34. D1
F F
G Charge one: sentenced to 18 months’ imprisonment; G
Charge two: sentenced to 30 months’ imprisonment, 6
H H
months concurrent, making a total of 42
I months. I
J J
D2
K K
Charge one: sentenced to 16 months’ imprisonment.
L L
M D3 M
N N
Charge one: sentenced to 16 months’ imprisonment.
O O
P P
Q Q
( A Yim )
R Deputy District Judge R
S S
T T
U U
V V
A A
B B
DCCC 384/2017
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 384 OF 2017 E
F F
---------------------
G HKSAR G
v
H H
DE LA CRUZ ANGELO PORTO (D1)
(also known as Angel S Cabalza,
I I
Antonio J Tubon, Jimmy L De VERA,
Jaime De Vera LANSANGAN,
J Roberto Salome RAZON, J
Jimmy Legarda DABUET,
K Rodolfo Jr Bamba PATRIARCA, K
Rodolfo Jr. Bamba PATRIARCA,
L Nino Danilo De Leon PARIAL, and L
Emmanuel Trinidad DOMINGO)
M TALAO CHRISTOPHER DOMINGO (D2) M
NIDUAZA SHIELA MARY MOYA (D3)
N N
---------------------
O O
Before: Deputy District Judge A Yim in court
P P
Date: 28 August 2017
Q Present: Mr King Chan, Public Prosecutor, for HKSAR/Director of Q
Public Prosecution
R R
Mr Lau Leong Ho, Ricky, of Tsang, Chan & Woo, assigned
S by the Director of Legal Aid, for D1 to D3 S
Offences: [1] Attempted theft (企圖盜竊罪) - D1 to D3
T T
[2] Breach of deportation order (違反遞解離境令) - D1
U U
V V
-2-
A A
B B
C ---------------------------------------- C
REASONS FOR SENTENCE
D D
----------------------------------------
E E
1. The defendants were jointly charged with one count of
F F
attempted theft, contrary to section 9 of the Theft Ordinance, Cap 210 and
G section 159G of the Crimes Ordinance, Cap 200. G
H H
2. While the first defendant was further charged with breach of
I a deportation order, contrary to section 43(1)(a) of the Immigration I
Ordinance, Cap 115.
J J
K 3. The defendants pleaded guilty to their respective charge(s) K
and admitted the facts. They were convicted accordingly.
L L
M Summary of facts M
N N
4. D1 entered Hong Kong at 6:50 pm on 18 January 2017 via
O Hong Kong International Airport under the name “DE LA CRUZ, O
ANGELO PORTO”. D2 and D3 entered Hong Kong at 11:54 pm on the
P P
same day via Hong Kong International Airport.
Q Q
Charge one (D1 – D3)
R R
S 5. At about 5:45 pm on 19 January 2017 (Thursday), D1 to D3 S
were acting furtively (watching the belongings and bags of passers-by)
T T
inside MTR Causeway Bay station and MTR Wan Chai station. They
U U
V V
-3-
A A
B B
travelled from Causeway Bay station to Wan Chai station, after lingering
C a while without exiting boarded the MTR train and returned to Causeway C
Bay station again.
D D
E 6. Later at about 6:18 pm, while travelling on the escalator DE1 E
up to exit D of the Causeway Bay station, the three defendants stood behind
F F
the victim at different positions, acted together attempted to steal from the
G victim. D1 who was directly behind the victim unzipping the victim’s G
rucksack from behind and inserting his right hand therein. D3 was standing
H H
next to D1 watching while D2 was one step behind the two defendants
I spreading his arms and holding onto handrails of both sides. As the victim I
getting near to the top of the escalator, D1 withdrew his hand from the
J J
rucksack.
K K
7. This attempted theft by pickpocketing was witnessed by
L L
SPC47586. The officer called for assistance and the defendants were
M intercepted and arrested. M
N N
Charge two (D1)
O O
8. Fingerprint comparison reveals that D1 is the subject of a
P P
deportation order dated 11 May 1988 and issued against him under another
Q name of his. The deportation order required D1 to leave Hong Kong and Q
prohibited him from being in Hong Kong at any time thereafter. The order
R R
was certified to have been served on him on 7 June 1988 and is still in force.
S He was first deported to the Philippines on 1 July 1988. S
T T
U U
V V
-4-
A A
B B
9. Between 18 January 2017 and 19 January 2017, D1 was in
C Hong Kong in contravention of the deportation order against him. C
D D
Background &Mitigation
E E
D1
F F
G 10. D1 aged 68, a Filipino came to Hong Kong as a visitor. He G
has 8 previous convictions all related to dishonesty since 1982, and among
H H
which involving 12 counts of breach of deportation order since he was
I served the deportation order in 1988. He was last released from prison in I
September 2015.
J J
K 11. He is a widower, his children within the wedlock all grown up K
and have their own family. The defendant is living with his girlfriend and
L L
their daughter aged 13 in Philippines. He used to be a taxi driver and then
M changed to be a tailor assistant earning about HK$1,000 per month. M
N N
12. He is the sole breadwinner of the family, because of financial
O needs, he borrowed money from loan shark to come to Hong Kong to O
commit pickpocketing. He did not know the other defendants in
P P
Philippines, they met in a guesthouse in Hong Kong, and lined up to
Q commit the crime together. He knew it was a serious offence, he pleaded Q
guilty, he would not commit a crime again, he was of old age and urged
R R
the court for leniency.
S S
T T
U U
V V
-5-
A A
B B
D2
C C
13. D2 aged 33, a Filipino came to Hong Kong as a visitor. He
D D
has a clear record. He is married with 2 daughters aged 1 and 3 years old.
E He lives with his wife, children, his mother, his step-father and his E
grandmother in Philippines. Only he and the step-father are working. He
F F
last worked as a driver and earned around HK$2,300 per month.
G G
14. Being misled that he could work in Hong Kong even as a
H H
visitor, he borrowed money to come to Hong Kong to work, in order to
I earn more for his family. He met D1 and D3 in a guesthouse in Hong Kong, I
and lined up to commit the crime together. He knew it was a serious
J J
offence, he pleaded guilty, he was deeply regretted for his wrong and urged
K the court for leniency. K
L L
D3
M M
15. D3 aged 39, a Filipino came to Hong Kong as a visitor. She
N N
has a clear record. She is married with 2 children aged 21 and 20 years old,
O both are student. The husband is a drug addict and suffered from drugs O
stimulated illness and without earning capacity. She was the sole
P P
breadwinner earning about HK$1,000 odd per month.
Q Q
16. Being misled that she could work in Hong Kong even as a
R R
visitor, she borrowed money to come to Hong Kong to work, in order to
S earn more for her children’s education. She met D1 and D2 in a guesthouse S
in Hong Kong, and lined up to commit the crime together. She knew it
T T
was a serious offence, she pleaded guilty, she was deeply regretted for her
U U
V V
-6-
A A
B B
wrong and urged the court for leniency. The children also wrote mitigation
C letters for their mother. C
D D
Sentence
E E
17. In HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, it was said
F F
that theft by pickpocketing is a type of offence that society severely and
G rightly condemns, and that a guideline sentence of 12 to 15 months’ G
imprisonment after trial is appropriate for a first time offender. That,
H H
however, is subject to the existence of aggravating features, eg outsider
I offender, joint enterprise, crowded public places. I
J J
18. It is recognised that “foreigners who make lightning forays in
K Hong Kong with the object of making quick profits from criminal ventures K
must be discouraged” R v Ambas and Timzon CACC 441/1994. If an
L L
offender comes to Hong Kong with a travelling document accepted by the
M Hong Kong Immigration Department specifically to commit serious crime, M
this constitutes an aggravating factor.
N N
O 19. D1 came to Hong Kong to commit pickpocketing, while D2 O
and D3 said they were misled that they could be able to obtain employment
P P
in Hong Kong as visitor. Even accepting the mitigation of D2 and D3, they
Q should have learnt the condition imposed by the immigration after they Q
entered Hong Kong. According to their mitigation, very quickly
R R
afterwards they lined up with D1 and committed the offence with a view
S to make quick money within 24 hours of their arrival. S
T T
U U
V V
-7-
A A
B B
20. In HKSAR v Chan Mei-yee Carman [2010] 4 HKC 571, the
C court held that the attempted theft justified a starting point of 15 months’ C
imprisonment, but that this could be increased to an overall sentence of 30
D D
months’ imprisonment once the aggravating features, which included the
E commission of the offence by more than one offender in a busy street and E
a bad criminal record, were factored in.
F F
G 21. In HKSAR v Cheng Wai Leung CACC 358/2016, the G
defendant jointly charged with Lam for stealing by pickpocketing a
H H
smartphone on a street in Mongkok. The Court of Appeal upheld a final
I starting point of 30 months, of which started with 15 months and further I
enhancement of 3 months for crowded place, 3 more months for joint
J J
enterprise, and 9 more months for persistent re-offending.
K K
22. The defence also referred me to the case of HKSAR v Fabroa
L L
Marites Bacus & others DCCC 960/2011 which was about four defendants
M jointly charged with pickpocketing at a crowded shopping centre on the M
next day they arrived in Hong Kong. The sentencing judge adopted the
N N
basic starting point of 15 months and enhanced to 30 months for the
O defendants with previous conviction records and enhanced to 24 months O
for the one with clear record.
P P
Q 23. In the present case, the attempted theft committed during rush Q
hours in a MTR station, a place in which the public was at particular risk,
R R
by the three defendants in an organised and professional manner. The
S defendants were seen looking for their target inside the MTR stations for S
more than half hour, before they approached the victim. The criminality
T T
of an attempted theft is no less than a completed theft.
U U
V V
-8-
A A
B B
C 24. Having considered the whole circumstances, I am with the C
view that for the attempted theft in the present case it is justified to start
D D
with 15 months’ imprisonment, then enhanced it by 3 months for the
E commission in the crowded MTR station, a further 3 months for joint E
enterprise and a further 3 months for outside offender, making a total of 24
F F
months for D2 and D3. The two defendants indicated their plea at the
G earliest opportunity, they were entitled to 1/3 discount, however, I do not G
consider there to be any mitigating factors that called for further deduction.
H H
I 25. In the case of D1, he had 8 previous convictions related to I
dishonesty (4 of which is pickpocketing) since 1982, I consider the fact of
J J
his repetitive offending for the same type of offence amount to an
K aggravating factor and enhanced to a further 3 months, making a total of K
27 months.
L L
M 26. The maximum sentence for breach of deportation order is 7 M
years. In HKSAR v Wabhi Tri-Wahyu also known as Wahyu Wabhi Tri,
N N
Supri Yatnak and Supriyatnak CACC 345/2014, Macrae JA confirmed that
O the starting point of 27 months’ imprisonment appeared to have been in O
line with Court of First Instance appellate authority for a first breach of a
P P
deportation order. In HKSAR v Pham Wan Hung CACC14/2011, the Court
Q of Appeal considered for a defendant with four previous similar conviction Q
of breach of deportation order, the appropriate starting should be 42 months’
R R
imprisonment.
S S
27. In HKSAR v Cristian Alberto Cardona Quinchia CACC
T T
106/2016, McWalters JA was in the opinion that where different
U U
V V
-9-
A A
B B
culpability between the breach of deportation order and other criminal
C charges, the general principles still applied in considering the overall C
sentence. “It may well be appropriate in many case for the sentences to be
D D
largely, if not wholly, consecutive in order to strengthen the bite of the
E breach of deportation order offence and provide a meaningful deterrent to E
persons against whom such orders are made from breaching those orders.”
F F
G
28. The deportation order was served to D1 in 1988, since then he G
has been convicted on 12 counts of breach of a deportation order. The
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deportation order was issued against the defendant under the name “Mr
I Angel S Cabalza alias Antonio J Tubon”, the then date of birth being 27 I
February 1947.
J J
29. The prosecution submitted the Reasons for sentence of his last
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criminal case DCCC 798/2013 and to clarify his date of birth I also called
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for the case file. It revealed that he had eight different names known to
M
Hong Kong Immigration Department by then. He obtained a new and M
genuine passport from the Philippine authorities on 28 June 2012 in the
N N
new name of Emmanuel Trinidad Domingo, date of birth being 26
O September 1954 and said to be aged 58. After his arrest for pickpocketing O
on 16 July 2013, it was later found out that he had entered and left Hong
P P
Kong on 6 occasions between 24 July 2012 and 18 June 2013.
Q Q
30. He was last released from prison in September 2015. Upon
R R
his arrest on 19 January 2017, it was found that the defendant was issued
S
with another Philippine passport in another name unknown to the Hong S
Kong Immigration Department, this time the date of birth being 13 January
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1949. The said passport was issued on 27 July 2016. The prosecution said
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A A
B B
no further investigation would be carried out for the discrepancies noted
C from his various passports. I indicated to the defence that with the different C
date of birth provided by the defendant no weight would be given to the
D D
mitigation that D1 is of old age. The defence did not submit further on his
E age. E
F F
31. The defendant was convicted on 12 counts of breach of
G
deportation order. By his last case in DCCC 789/2013, he had been G
convicted on 5 counts of breach of deportation order, the sentencing judge
H H
in his last case adopted a starting point of 3 years for each of his breach of
I deportation order, after allowing discount for his plea, the sentence was I
ordered to run partly concurrent, making a total of 27 months. Yet the
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defendant committed further breach again after his release in September
K 2015 by obtaining passport in new name again. His repetitive re-offending K
called for deterrence. After consideration, I adopted 45 months’
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imprisonment as the starting point for charge 2.
M M
32. D1 indicated his plea of guilty in the earliest opportunity, he
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was entitled to 1/3 discount. I do not consider there to be any mitigating
O factor that called for further deduction. Unlike the defendant in Pham Van O
Hung whose offences were both immigration offence, the two offences in
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the present case are of different nature.
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33. In his last case DCCC 798/2013, in addition to the 7 counts of
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breach of deportation order, the defendant was given another consecutive
S sentence of 12 months for pickpocketing, ie a total of 39 months. Taking S
into account of the totality consideration, I consider it is appropriate to have
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U U
V V
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A A
B B
his sentence to run partly concurrent and partly consecutive, making a total
C of 42 months’ imprisonment. C
D D
Order
E E
34. D1
F F
G Charge one: sentenced to 18 months’ imprisonment; G
Charge two: sentenced to 30 months’ imprisonment, 6
H H
months concurrent, making a total of 42
I months. I
J J
D2
K K
Charge one: sentenced to 16 months’ imprisonment.
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M D3 M
N N
Charge one: sentenced to 16 months’ imprisonment.
O O
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( A Yim )
R Deputy District Judge R
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