HKSAR v. GUZMAN BETANCUR JUAN CARLOS

DCCC 36/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 36 OF 2014

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Reasons for Sentence

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1.  The defendant has pleaded guilty to four charges, two charges being burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210; and two further Immigration offences, the first being possession of a forged travel document, and the fourth being making a false representation to an Immigration officer offence.

2.  The facts are as follows.  On 6 July 2013 a French man checked in to Room 2316 in the Peninsula Hotel.  On 7 July, in the early hours of the morning, 4.27 am, you, the defendant, pretended to be the French man to claim a card key from the front desk.  In order to obtain the key, you gave the front desk staff the French man’s full name and his date of birth. Thereafter you were given a key.

3.  The next day, on 7 July, at 2 pm, the front desk received a call from that room, and the caller said that he had forgotten the code that he had set to the safe.  You let in two members of staff, who opened the safe and left the room.  Later that same day, at about 7 pm, when the occupant returned, he reported the theft of his property, some being from the safe itself and some being from within the room.  The value of his loss was $23,800, covered by the hotel insurance.

4.  From the facts I can see that you are a Colombian national, that you entered Hong Kong in July before these offences were committed on your Colombian passport, which has been determined to be a legal passport.  You left Hong Kong on 13 July via the airport on the same Colombian passport.

5.  Before you left Hong Kong, on the day before, you burgled a second hotel room at the Disneyland Hotel.  What happened there was a hotel guest of Room 5033 left her room early that morning, and a cleaner entered to do his job.  Whilst he was cleaning this room, you entered and asked when he would finish cleaning.  He assumed that you were the occupant.  You waited outside for a few minutes for him to finish this hotel room.  When he came out, he prudently locked the door and asked you to open the door with your own key card.  You had two key cards.  The first did not work; the second did, and you entered the room.  The cleaner then left you there.

6.  Not long after, you told another member of hotel staff that you had forgotten the combination of the safe that you had set. Other staff came to this room and asked for your name.  You gave them the name that matched the hotel guest’s name.  The safe was opened for you and there was a passport in it.  The manager checked the name against the name that you gave the manager.  It was the same.  They then left you in the room.

7.  Later that evening a burglary of that room was reported, and cash was taken from this room, a total of US$1,200 and 1,000 Indian rupee.  You left Hong Kong the next day.

8.  Some months later, on 20 September, you were caught roaming the 16th floor of the Sheraton Hotel by a member of staff that recognised you from a photograph.  Your image had been circulated by the Peninsula Hotel after the burglary in July.  This rather observant member of staff stopped you, and the police were called.  You were at the time living in Chungking Mansions not far away, and your room there was searched.

9.  The police found two passports, your real Colombian passport and a forged Mexican passport.  This was the passport that you had used to enter Hong Kong on 17 September, several days prior to your arrest, and is therefore the subject of Charges 3 and 4.

10.  After your arrest and under caution, you made full admissions to the police officers, the details of which are covered in the Statement of Facts.  Your plea of guilty is your best mitigation.

11.  In Hong Kong you have a clear record.  The facts show that you came back to Hong Kong several months after committing the two burglaries in July and you were caught in the Sheraton Hotel.  I suspect that you had come to commit similar offences again.  I suspect that in July you were not acting on your own, judging by the fact that you knew the hotel occupant’s name and birthday and knew he was not there at 4 o’clock in the morning.

12.  I have been told in mitigation that you came to Hong Kong to commit offences under duress, under threat; your family in Mexico were threatened.  I have been told today that you also came back in September not to commit further offences but in fact to claim asylum, and that you were in the Sheraton Hotel on the 16th floor to look for somebody.  I also note that you had two passports in Hong Kong but chose to use the forged one to enter Hong Kong.  You have given an explanation as to why this was used to claim asylum. However, I have my doubts about this particular submission made.  I will not take it any further, as it is not particularly relevant, nor will it affect sentence significantly.  Any Immigration offence of this nature is a very serious offence.

13.  I have heard today that you are 37 years old, that you have now claimed asylum in Hong Kong.  The date of the letter before me is 23 December 2013, where your application has been confirmed to have been made.  Health-wise I have been told that you are suffering from HIV and you have for the past 20 years.  For the past year you have been unable to afford treatment.  You are now receiving treatment and have been since you have been in custody.  This is treatment that you could previously not afford.  From the letter submitted, your condition whilst in custody has been stable, but today I have been told it is in fact otherwise.  However, no further information is available as to your medical condition now.  I could adjourn for a full medical report as you are receiving treatment at Queen Elizabeth Hospital, but Mr Arthur has specific instructions that you do not wish to adjourn sentence to obtain a medical report.  I will proceed on the basis that you are an HIV sufferer receiving treatment with no long-term or short-term prognosis known to me.  In any event, when you entered Hong Kong to commit the offences in July and the Immigration offences in September, you were well aware that you were suffering from this illness.

14.  I have considered the facts of the case.  I have considered mitigation put forward.  It was suggested that you were here to commit offences under duress, but I have nothing but a bare assertion.  I cannot take it any further.  It is not a submission that I will take on board, nor will it mean that you are treated any more leniently because of the submission.

15.  The normal starting point for a hotel room burglary, as Mr Arthur has acknowledged, is a 3-year starting point if there are no aggravating factors or mitigating factors, and this is supported by an authority, HKSAR v Ng Wai Hing CACC 621/2012.  From the facts and mitigation made, I see no aggravating factors to increase that starting point, nor do I see any mitigating factors to reduce that starting point.

16.  As for the two Immigration offences, there are no guidelines except that an immediate custodial sentence is appropriate.  I will take into account the seriousness of those two offences and the use made of the forged Mexican passport.

17.  For the first two charges I will take a starting point of 3 years, and for the 3rd and 4th charge I will take a starting point of 18 months.

18.  Defendant, please stand up.  You have pleaded guilty to all four charges, and you are entitled to a discount of one‑third for your plea.

19.  After such a discount, for Charge 1 and 2 you are sentenced to 2 years’ imprisonment on each charge.  For Charges 3 and 4 you are sentenced to 1 year’s imprisonment.

20.  I have taken into account the date of the offences and the totality principle.  For Charge 2, of the 2 years’ imprisonment I have imposed, 6 months of that 2 years will be served consecutively to Charge 1 and the balance concurrently.  For Charges 3 and 4, they will be served concurrently, but for Charge 3, 3 months of the 1-year term of imprisonment will be served consecutively to Charge 1 and the balance concurrently.  For Charge 4, the 1-year term of imprisonment will be served concurrently to Charge 1.

21.  That is a total sentence of 2 years and 9 months.  Do you understand that sentence?