DCCC663/2017 HKSAR v. BELVES CESAR JAMBALOS (also known as ALCOLEA FRANCISCO JR SUYO and ALCOLEA FRANCISCO JR. SUYO) - LawHero
DCCC663/2017
HKSAR v. BELVES CESAR JAMBALOS (also known as ALCOLEA FRANCISCO JR SUYO and ALCOLEA FRANCISCO JR. SUYO)
區域法院（刑事）HH Judge K Lo18/1/2018[2018] HKDC 298
DCCC663/2017
A A
B B
DCCC 663/2017
C [2018] HKDC 298 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 663 OF 2017
F F
-------------------------
G G
HKSAR
H
v H
BELVES CESAR JAMBALOS
I (also known as I
ALCOLEA FRANCISCO JR SUYO and
J ALCOLEA FRANCISCO JR. SUYO) J
--------------------------
K K
L Before: HH Judge K Lo L
Date: 19 January 2018
M M
Present: Mr Wilson Choi, Public Prosecutor of the Department of
N Justice, for HKSAR N
Mr Wong Tsz Ho, of Christine M Koo & Ip, Solicitors &
O O
Notaries LLP, assigned by the Director of Legal Aid, for the
P defendant P
Offence: (1) Theft (盜竊罪)
Q Q
(2) to (5) Obtaining property by deception (以欺騙手段取得
R R
財產)
S (6) Breach of deportation order (違反遞解離境令) S
T T
U U
V V
-2-
A A
B B
C ----------------------------------------- C
REASONS FOR SENTENCE
D D
-----------------------------------------
E E
1. On 5 January 2018, the defendant pleaded guilty before me to
F F
a charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210
G (1st charge) and four charges of obtaining property by deception, contrary G
to section 17(1) of the Theft Ordinance, Cap 210 (2nd charge, 3rd charge,
H H
4th charge and 5th charge). He also pleaded guilty to a charge of breach
I of deportation order, contrary to section 43(1)(a) of the Immigration I
Ordinance, Cap 115 (6th charge).
J J
K 2. Defendant agreed to the Summary of Facts and was convicted K
of the six charges. According to the Summary of Facts, a Filipino female
L L
(PW1) found her purse missing at around 3.15 pm on 18 April 2017 shortly
M after she last checked. Inside the purse, there were, inter alia, a M
Hongkong Bank ATM card, a Citibank Visa card, American Express
N N
Cathay Pacific card and a Hongkong Bank Platinum Visa card and
O American Express Platinum card. O
P P
3. Meanwhile, after PW1 reported the missing cards, she was
Q notified that her stolen Citibank and American Express credit cards were Q
being used in “Bonjour Cosmetic Wholesale Centre Limited” near Tai
R R
Yuen Street, Wanchai. PW1 reported to police and was later accompanied
S by police to the vicinity of Tai Yuen Street and Johnston Road in Wanchai. S
T T
U U
V V
-3-
A A
B B
4. At around 4 pm, the defendant was located at “Sa Sa Cosmetic
C Company Limited” in Johnston Road. Four credit cards of PW1, namely, C
the Citibank Visa card, American Express Cathay Pacific card,
D D
Hongkong Bank Platinum Visa card and American Express Platinum card
E were recovered from the defendant. E
F F
5. Defendant was subsequently arrested. Inquiries revealed that
G defendant made earlier purchases at the said Bonjour Cosmetic Wholesale G
Centre Limited using the said Citibank Visa card for $4,307.50 worth of
H H
goods, including 10 perfumes and one plastic bag, and using the American
I Express Cathay Pacific card for $1,368.50 worth of goods, including eight I
health products and one plastic bag.
J J
K 6. Defendant had earlier made two transactions at the said Sa Sa K
Cosmetic Company Limited using PW1’s Hongkong Bank Platinum Visa
L L
card purchasing $4,426 worth of goods, including five health products, and
M using the said American Express Cathay Pacific card purchasing $2,989 M
worth of goods, including four hand creams, five perfumes, one box of
N N
health product and one plastic bag.
O O
7. The products and sales slips were seized. Defendant was
P P
found to have travelled to Hong Kong on 11 April 2017 using a Filipino
Q passport under a different name although he was the subject of a Q
deportation order dated 8 September 2016 under a different name.
R R
S 8. Under caution, defendant said he picked up a purse and stole S
four credit cards from it. He then went on shopping at the two stores
T T
aforesaid in the vicinity. He apologised and asked for a chance. He also
U U
V V
-4-
A A
B B
explained that he had two different passports under two different names as
C he was adopted by different families previously. He admitted he had two C
Filipino passports under different names and with different dates of birth.
D D
Defendant admitted that he was aware of the deportation order that he was
E not allowed to enter Hong Kong. E
F F
Previous convictions
G G
9. Defendant had two previous convictions similar to Charges 2
H H
to 5 when he was sentenced to 10 months’ imprisonment on each charge to
I run concurrently. I
J J
Mitigation
K K
10. Defendant is aged 64, married with two daughters. He had
L L
received upper secondary school education in the Philippines and was
M unemployed at the time of offence. He was discharged from Hong Kong M
prison on 20 September 2016 and was deported on the same day. He said
N N
he came to Hong Kong on 11 April 2017 for shopping cellphones and other
O goods for resale at a higher price on return to Philippines. O
P P
11. It is also submitted on his behalf that his wife was suffering
Q from lung cancer and had only six to eight months to live. A medical Q
certificate dated 9 May 2017 was submitted in that regard. It is, however,
R R
admitted by the defendant that he was aware of the illness of the wife
S before he came to Hong Kong. S
T T
U U
V V
-5-
A A
B B
12. Defendant’s solicitors ask for leniency on behalf of the
C defendant by reason that the defendant had a timely guilty plea, and he was C
fully co-operative with the police upon his arrest, that he had returned all
D D
goods purchased, that he vowed not to come to Hong Kong again.
E E
13. In the course of mitigation, Mr Wong on behalf of the
F F
defendant, handed to court several letters. Letter from his wife, which is
G actually addressed to the defendant’s solicitors, said that in view of the fact G
that she only had a few months to live, she would like to die in the arms of
H H
the defendant. There was also the letter from defendant’s daughter saying
I that defendant was a good man and a loving father and that she hopes that I
the defendant be released before her wedding on 17 February 2017 to walk
J J
her down the aisle. There was also the letter from the parish priest of the
K church that the defendant attended, praising the defendant as an active K
member of the church, an excellent role model. There was also a letter
L L
from the Office for Senior Citizens Affairs in City of Valenzeula saying
M that defendant is a respected person of good moral character that he is an M
honest, considerate and supportive individual.
N N
O 14. Mr Wong, solicitor for the defendant, urged this court not to O
enhance the 36 months’ sentencing starting point despite defendant’s
P P
previous similar convictions. He also asked that this court should pass
Q concurrent sentences on all charges. He said that defendant committed the Q
other charges, meaning charges apart from the breach of deportation order
R R
charge, whilst he was in breach of the deportation order. He asked this
S court to consider the totality principle. S
T T
U U
V V
-6-
A A
B B
15. Before sentencing, I have considered all being said on behalf
C of the defendant by Mr Wong, including of course the medical certificate C
and all mitigation letters. These are however very serious offences of
D D
which the defendant was convicted. I must admit that the most forceful
E mitigation done on behalf of the defendant was his timely plea. As for the E
plea by the wife, it was the defendant who chose to come to Hong Kong,
F F
knowing the illness of the wife.
G G
Sentencing
H H
I 1st Charge I
J J
16. Coming to the sentence of the 1st charge of theft, this is a
K charge of theft by finding. The appropriate sentencing starting point is 6 K
months, and by reason of the defendant’s guilty plea, full one-third
L L
sentencing discount is given. Defendant is therefore sentenced to 4
M months’ imprisonment on Charge 1. M
N N
2nd, 3rd, 4th and 5th Charges
O O
17. I now turn to sentencing of the 2nd, 3rd, 4th and 5th charges.
P P
I have been referred by Mr Wong for the defendant to the Court of Appeal
Q case of Tandon William Chaing CACC 404 of 2012 where the court Q
approved sentencing starting point of 3 years’ imprisonment adopted in the
R R
case of Kwan Po Keung [2012] 2 HKLR 12 for the unauthorised use of a
S credit card belonging to another on a single occasion to obtain jewellery S
and watches to a total value of $56,116.
T T
U U
V V
-7-
A A
B B
18. In passing sentences on these charges, I must take into
C consideration the factors relevant to sentencing for credit-card fraud as set C
out by the Court of Appeal in the case of R v Chan Sui To [1996] 2 HKLR
D D
128. These factors are not exhaustive but they give assistance to this court.
E Again in the case of HKSAR v Tu I Lang CACC 464 of 2006, it is said by E
the Court of Appeal that where the facts of the offence point to a small
F F
unsophisticated operation involving one or a few forged credit cards
G uncomplicated by other evidence materially linking to the offender to a G
larger operation, then a starting point of 3 years’ imprisonment or less
H H
would be appropriate.
I I
19. In the case here, the amount involved in each of the four
J J
charges is relatively small. This is of course only one of the factors to be
K considered. On the other hand, the defendant who had just been released K
from prison less than seven months ago now reoffends and was convicted
L L
of similar charges. It is noted also that this is a theft-by-finding case and
M there is no evidence that the operation is a sophisticated one. M
N N
20. Considering all the circumstances of this case, I accept that 3-
O year imprisonment is an appropriate starting point for each of the four O
charges involving simple cases of credit-card fraud where stolen genuine
P P
credit cards are used to commit the offences. The case relied on is HKSAR
Q v Lam See Chung, Stephen [2013] 5 HKLR 242. After taking into Q
consideration the guilty plea, the sentence in each of the four charges is
R R
reduced by one-third to 24 months each. As these offences were all
S committed within a very short period of time on the same day and they S
were all of the same nature, the sentence for each of these charges shall run
T T
concurrently with each other.
U U
V V
-8-
A A
B B
C 21. Likewise, the commission of the 1st charge offence is indeed C
the earlier stage of the commission of the same criminal act and is closely
D D
connected to the 2nd to 5th charges. I therefore order that the sentence of
E the 1st charge shall also run concurrently with that of the sentences from E
Charges 2 to 5.
F F
G 6th Charge G
H H
22. I now turn to the sentence for the 6th charge, ie breach of
I deportation order. In the case of HKSAR v Cortez Emily Bisoy, HCMA I
457/2002, it is said by Deputy High Court Judge McMahon (as he then
J J
was) that:-
K K
“The legislature intended the offence of breach of a deportation
L order to be a serious offence and further, a more serious offence L
than unlawfully remaining in Hong Kong is perhaps evident
from the maximum penalty being one of 7 years’ imprisonment
M M
as compared to the maximum sentence of 3 years’ imprisonment
for unlawfully remaining in Hong Kong. That is sensible when
N it is remembered that the breach of a deportation order requires N
a deliberate circumvention of an order directed at the offender
personally. In my view, a sentence of 18 months’ imprisonment
O after plea for such an offence cannot be criticised.” O
P P
23. Before he arrived at such decision, he had considered cases of
Q HKSAR v Luu Dinh Huy, HCMA 690/1997, HKSAR v Do Thi Hue, HCMA Q
873/2001 and the case of HKSAR v Nguyen Chi Trung also known as Dong
R R
Van Thanh, HCMA 1095/2001. The appropriate sentence on this charge
S after his timely plea is therefore 18 months. S
T T
U U
V V
-9-
A A
B B
24. The nature of 6th charge is entirely different from the other
C charges and it arose out of facts unrelated to the other charges. The C
th
sentence of 6 Charge should run consecutively with that of the other
D D
charges. However, considering the totality principle, the circumstances of
E this case and in order to achieve a total sentence which is just and E
proportionate to his culpability, 6 months’ imprisonment of the 6th charge
F F
shall run concurrently with the sentence in the other charges. The rest of
G the sentence for the 6th charge shall run consecutively with the sentence of G
the other charges, making the total sentence 3 years’ imprisonment.
H H
I I
J J
K ( K Lo ) K
District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 663/2017
C [2018] HKDC 298 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 663 OF 2017
F F
-------------------------
G G
HKSAR
H
v H
BELVES CESAR JAMBALOS
I (also known as I
ALCOLEA FRANCISCO JR SUYO and
J ALCOLEA FRANCISCO JR. SUYO) J
--------------------------
K K
L Before: HH Judge K Lo L
Date: 19 January 2018
M M
Present: Mr Wilson Choi, Public Prosecutor of the Department of
N Justice, for HKSAR N
Mr Wong Tsz Ho, of Christine M Koo & Ip, Solicitors &
O O
Notaries LLP, assigned by the Director of Legal Aid, for the
P defendant P
Offence: (1) Theft (盜竊罪)
Q Q
(2) to (5) Obtaining property by deception (以欺騙手段取得
R R
財產)
S (6) Breach of deportation order (違反遞解離境令) S
T T
U U
V V
-2-
A A
B B
C ----------------------------------------- C
REASONS FOR SENTENCE
D D
-----------------------------------------
E E
1. On 5 January 2018, the defendant pleaded guilty before me to
F F
a charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210
G (1st charge) and four charges of obtaining property by deception, contrary G
to section 17(1) of the Theft Ordinance, Cap 210 (2nd charge, 3rd charge,
H H
4th charge and 5th charge). He also pleaded guilty to a charge of breach
I of deportation order, contrary to section 43(1)(a) of the Immigration I
Ordinance, Cap 115 (6th charge).
J J
K 2. Defendant agreed to the Summary of Facts and was convicted K
of the six charges. According to the Summary of Facts, a Filipino female
L L
(PW1) found her purse missing at around 3.15 pm on 18 April 2017 shortly
M after she last checked. Inside the purse, there were, inter alia, a M
Hongkong Bank ATM card, a Citibank Visa card, American Express
N N
Cathay Pacific card and a Hongkong Bank Platinum Visa card and
O American Express Platinum card. O
P P
3. Meanwhile, after PW1 reported the missing cards, she was
Q notified that her stolen Citibank and American Express credit cards were Q
being used in “Bonjour Cosmetic Wholesale Centre Limited” near Tai
R R
Yuen Street, Wanchai. PW1 reported to police and was later accompanied
S by police to the vicinity of Tai Yuen Street and Johnston Road in Wanchai. S
T T
U U
V V
-3-
A A
B B
4. At around 4 pm, the defendant was located at “Sa Sa Cosmetic
C Company Limited” in Johnston Road. Four credit cards of PW1, namely, C
the Citibank Visa card, American Express Cathay Pacific card,
D D
Hongkong Bank Platinum Visa card and American Express Platinum card
E were recovered from the defendant. E
F F
5. Defendant was subsequently arrested. Inquiries revealed that
G defendant made earlier purchases at the said Bonjour Cosmetic Wholesale G
Centre Limited using the said Citibank Visa card for $4,307.50 worth of
H H
goods, including 10 perfumes and one plastic bag, and using the American
I Express Cathay Pacific card for $1,368.50 worth of goods, including eight I
health products and one plastic bag.
J J
K 6. Defendant had earlier made two transactions at the said Sa Sa K
Cosmetic Company Limited using PW1’s Hongkong Bank Platinum Visa
L L
card purchasing $4,426 worth of goods, including five health products, and
M using the said American Express Cathay Pacific card purchasing $2,989 M
worth of goods, including four hand creams, five perfumes, one box of
N N
health product and one plastic bag.
O O
7. The products and sales slips were seized. Defendant was
P P
found to have travelled to Hong Kong on 11 April 2017 using a Filipino
Q passport under a different name although he was the subject of a Q
deportation order dated 8 September 2016 under a different name.
R R
S 8. Under caution, defendant said he picked up a purse and stole S
four credit cards from it. He then went on shopping at the two stores
T T
aforesaid in the vicinity. He apologised and asked for a chance. He also
U U
V V
-4-
A A
B B
explained that he had two different passports under two different names as
C he was adopted by different families previously. He admitted he had two C
Filipino passports under different names and with different dates of birth.
D D
Defendant admitted that he was aware of the deportation order that he was
E not allowed to enter Hong Kong. E
F F
Previous convictions
G G
9. Defendant had two previous convictions similar to Charges 2
H H
to 5 when he was sentenced to 10 months’ imprisonment on each charge to
I run concurrently. I
J J
Mitigation
K K
10. Defendant is aged 64, married with two daughters. He had
L L
received upper secondary school education in the Philippines and was
M unemployed at the time of offence. He was discharged from Hong Kong M
prison on 20 September 2016 and was deported on the same day. He said
N N
he came to Hong Kong on 11 April 2017 for shopping cellphones and other
O goods for resale at a higher price on return to Philippines. O
P P
11. It is also submitted on his behalf that his wife was suffering
Q from lung cancer and had only six to eight months to live. A medical Q
certificate dated 9 May 2017 was submitted in that regard. It is, however,
R R
admitted by the defendant that he was aware of the illness of the wife
S before he came to Hong Kong. S
T T
U U
V V
-5-
A A
B B
12. Defendant’s solicitors ask for leniency on behalf of the
C defendant by reason that the defendant had a timely guilty plea, and he was C
fully co-operative with the police upon his arrest, that he had returned all
D D
goods purchased, that he vowed not to come to Hong Kong again.
E E
13. In the course of mitigation, Mr Wong on behalf of the
F F
defendant, handed to court several letters. Letter from his wife, which is
G actually addressed to the defendant’s solicitors, said that in view of the fact G
that she only had a few months to live, she would like to die in the arms of
H H
the defendant. There was also the letter from defendant’s daughter saying
I that defendant was a good man and a loving father and that she hopes that I
the defendant be released before her wedding on 17 February 2017 to walk
J J
her down the aisle. There was also the letter from the parish priest of the
K church that the defendant attended, praising the defendant as an active K
member of the church, an excellent role model. There was also a letter
L L
from the Office for Senior Citizens Affairs in City of Valenzeula saying
M that defendant is a respected person of good moral character that he is an M
honest, considerate and supportive individual.
N N
O 14. Mr Wong, solicitor for the defendant, urged this court not to O
enhance the 36 months’ sentencing starting point despite defendant’s
P P
previous similar convictions. He also asked that this court should pass
Q concurrent sentences on all charges. He said that defendant committed the Q
other charges, meaning charges apart from the breach of deportation order
R R
charge, whilst he was in breach of the deportation order. He asked this
S court to consider the totality principle. S
T T
U U
V V
-6-
A A
B B
15. Before sentencing, I have considered all being said on behalf
C of the defendant by Mr Wong, including of course the medical certificate C
and all mitigation letters. These are however very serious offences of
D D
which the defendant was convicted. I must admit that the most forceful
E mitigation done on behalf of the defendant was his timely plea. As for the E
plea by the wife, it was the defendant who chose to come to Hong Kong,
F F
knowing the illness of the wife.
G G
Sentencing
H H
I 1st Charge I
J J
16. Coming to the sentence of the 1st charge of theft, this is a
K charge of theft by finding. The appropriate sentencing starting point is 6 K
months, and by reason of the defendant’s guilty plea, full one-third
L L
sentencing discount is given. Defendant is therefore sentenced to 4
M months’ imprisonment on Charge 1. M
N N
2nd, 3rd, 4th and 5th Charges
O O
17. I now turn to sentencing of the 2nd, 3rd, 4th and 5th charges.
P P
I have been referred by Mr Wong for the defendant to the Court of Appeal
Q case of Tandon William Chaing CACC 404 of 2012 where the court Q
approved sentencing starting point of 3 years’ imprisonment adopted in the
R R
case of Kwan Po Keung [2012] 2 HKLR 12 for the unauthorised use of a
S credit card belonging to another on a single occasion to obtain jewellery S
and watches to a total value of $56,116.
T T
U U
V V
-7-
A A
B B
18. In passing sentences on these charges, I must take into
C consideration the factors relevant to sentencing for credit-card fraud as set C
out by the Court of Appeal in the case of R v Chan Sui To [1996] 2 HKLR
D D
128. These factors are not exhaustive but they give assistance to this court.
E Again in the case of HKSAR v Tu I Lang CACC 464 of 2006, it is said by E
the Court of Appeal that where the facts of the offence point to a small
F F
unsophisticated operation involving one or a few forged credit cards
G uncomplicated by other evidence materially linking to the offender to a G
larger operation, then a starting point of 3 years’ imprisonment or less
H H
would be appropriate.
I I
19. In the case here, the amount involved in each of the four
J J
charges is relatively small. This is of course only one of the factors to be
K considered. On the other hand, the defendant who had just been released K
from prison less than seven months ago now reoffends and was convicted
L L
of similar charges. It is noted also that this is a theft-by-finding case and
M there is no evidence that the operation is a sophisticated one. M
N N
20. Considering all the circumstances of this case, I accept that 3-
O year imprisonment is an appropriate starting point for each of the four O
charges involving simple cases of credit-card fraud where stolen genuine
P P
credit cards are used to commit the offences. The case relied on is HKSAR
Q v Lam See Chung, Stephen [2013] 5 HKLR 242. After taking into Q
consideration the guilty plea, the sentence in each of the four charges is
R R
reduced by one-third to 24 months each. As these offences were all
S committed within a very short period of time on the same day and they S
were all of the same nature, the sentence for each of these charges shall run
T T
concurrently with each other.
U U
V V
-8-
A A
B B
C 21. Likewise, the commission of the 1st charge offence is indeed C
the earlier stage of the commission of the same criminal act and is closely
D D
connected to the 2nd to 5th charges. I therefore order that the sentence of
E the 1st charge shall also run concurrently with that of the sentences from E
Charges 2 to 5.
F F
G 6th Charge G
H H
22. I now turn to the sentence for the 6th charge, ie breach of
I deportation order. In the case of HKSAR v Cortez Emily Bisoy, HCMA I
457/2002, it is said by Deputy High Court Judge McMahon (as he then
J J
was) that:-
K K
“The legislature intended the offence of breach of a deportation
L order to be a serious offence and further, a more serious offence L
than unlawfully remaining in Hong Kong is perhaps evident
from the maximum penalty being one of 7 years’ imprisonment
M M
as compared to the maximum sentence of 3 years’ imprisonment
for unlawfully remaining in Hong Kong. That is sensible when
N it is remembered that the breach of a deportation order requires N
a deliberate circumvention of an order directed at the offender
personally. In my view, a sentence of 18 months’ imprisonment
O after plea for such an offence cannot be criticised.” O
P P
23. Before he arrived at such decision, he had considered cases of
Q HKSAR v Luu Dinh Huy, HCMA 690/1997, HKSAR v Do Thi Hue, HCMA Q
873/2001 and the case of HKSAR v Nguyen Chi Trung also known as Dong
R R
Van Thanh, HCMA 1095/2001. The appropriate sentence on this charge
S after his timely plea is therefore 18 months. S
T T
U U
V V
-9-
A A
B B
24. The nature of 6th charge is entirely different from the other
C charges and it arose out of facts unrelated to the other charges. The C
th
sentence of 6 Charge should run consecutively with that of the other
D D
charges. However, considering the totality principle, the circumstances of
E this case and in order to achieve a total sentence which is just and E
proportionate to his culpability, 6 months’ imprisonment of the 6th charge
F F
shall run concurrently with the sentence in the other charges. The rest of
G the sentence for the 6th charge shall run consecutively with the sentence of G
the other charges, making the total sentence 3 years’ imprisonment.
H H
I I
J J
K ( K Lo ) K
District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V