HKSAR v. QUIATCHON JEFREY MEDIAVILLA

DCCC 1072/2022

[2023] HKDC 1603

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1072 OF 2022

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REASONS FOR SENTENCE

The defendant pleaded guilty to 12 charges of "Burglary" (Charges 1 to 12)  and a charge of "Theft" (Charge 13). In June and July 2022, he burgled a total of 12 restaurants, all situated at ground floor shop spaces in Mongkok and Sham Shui Po.

Summary of Facts

2.  The defendant committed all 12 burglaries with the same modus operandi.  Except in Charge 1, he sneaked into the restaurants in the morning hours when they were closed and took away electronic tablets, cell phones and cash.  In Charge 1, the defendant entered the restaurant during its business hours.

Charge 1 (7 June 2022)

3.  The defendant entered the restaurant as particularized in Charge 1 and took away a Samsung A7 tablet (valued at $2,000)  placed near the cashier counter.  Mr. Kunwor, owner of the restaurant, saw the defendant entering the premises around 11:36 a.m. and leaving soon after.

Charge 2 (9 June 2022)

4.  The defendant entered the restaurant as particularized in Charge 2 and took away a Redmi 9A mobile phone (valued at $600)  placed on a counter near the entrance. The restaurant's business hours were 7:00 a.m. to 10:00 p.m. whereas CCTV footage captured the defendant entering the premises and stealing the phone around 6:33 in the morning.

Charge 3 (14 June 2022)

5.  The defendant entered the restaurant as particularized in Charge 3 and took away a Redmi Note 9 mobile phone (valued at $2,500)  placed near its entrance.  The restaurant's business hours were 7:00 a.m. to 10:00 p.m. whereas CCTV footage captured the defendant entering the premises and stealing the phone around 6:00 in the morning.

Charge 4 (14 June 2022)

6.  The defendant entered the restaurant as particularized in Charge 4 and took away a Xiaomi mobile phone (valued at $1,000)  placed near its entrance.  The restaurant's business hours were 11:00 a.m. to 10:00 p.m. whereas CCTV footage captured the defendant entering the premises and stealing the phone around 7:36 in the morning.

Charge 5 (18 June 2022)

7.  The defendant entered the restaurant as particularized in Charge 5 and took away a metal box containing $3,000 cash placed on the cashier counter.  The restaurant's business hours were 11:00 a.m. to 10:00 p.m. whereas CCTV footage captured the defendant entering the premises and stealing the cash box around 9:00 in the morning.

Charge 6 (19 June 2022)

8.  The defendant entered the restaurant as particularized in Charge 6 and took away a Redmi mobile phone (valued at $1,500)  placed on the cashier counter.  The restaurant's business hours were 11:30 a.m. to 11:30 p.m. whereas CCTV footage captured the defendant entering the premises and stealing the phone around 7:35 in the morning.

Charge 7 (25 June 2022)

9.  The defendant entered the restaurant as particularized in Charge 7 and took away a Nokia mobile phone (valued at $1,000)  placed on the cashier counter.  The restaurant's business hours were 6:45 a.m. to midnight whereas CCTV footage captured the defendant entering the premises and stealing the phone around 6:50 in the morning.

Charge 8 (25 June 2022)

10.  The defendant entered the restaurant as particularized in Charge 8 and took away two Xiaomi mobile phones (each valued at $900)  placed near the cashier counter.  The restaurant's business hours were 11:00 a.m. to 10:30 p.m. whereas CCTV footage captured the defendant entering the premises and stealing the first phone around 9:02 in the morning; and doing the same about 20 minutes later.

Charge 9 (1 July 2022)

11.  The defendant entered the restaurant as particularized in Charge 9 and took away a Huawei tablet (valued at $3,000)  placed on the cashier counter.  The restaurant's business hours were noon to midnight whereas CCTV footage captured the defendant entering the premises and stealing the tablet around 7:30 in the morning.

Charge 10 (1 July 2022)

12.  The defendant entered the restaurant as particularized in Charge 10 and took away a Samsung mobile phone (valued at $2,000)  placed on the cashier counter and a red wooden box containing a piece of jade (valued at $1,000)  placed on a cupboard. The restaurant's business hours were 11:00 a.m. to 10:00 p.m. whereas CCTV footage captured the defendant entering the premises and stealing the phone and the wooden box around 8:27 in the morning.

Charge 11 (5 July 2022)

13.  The defendant entered the restaurant as particularized in Charge 11 and took away a Huawei tablet (valued at $1,500)  and a box containing about $1,000 cash both placed on the cashier counter.  The restaurant's business hours were 11:00 a.m. to 11:00 p.m. whereas CCTV footage captured the defendant entering the premises and stealing the tablet and the cash box around 9:34 in the morning.

Charge 12 (5 July 2022)

14.  The defendant entered the restaurant as particularized in Charge 12 and took away a Ulefone Note 10 mobile phone (valued at $1,500)  placed on the cashier counter. The restaurant's business hours were 11:30 a.m. to midnight whereas CCTV footage captured the defendant entering the premises and stealing the phone around 9:32 in the morning.

Arrest

15.  About 10:52 a.m. on 5 July 2022, DPC 13814 (PW17)  stopped the defendant on the street for enquiry.  Upon search, the Huawei tablet in Charge 11 and three letters addressed to different units at Nos.112-114 Fuk Wing Street, Sham Shui Po (collectively "the Letters")  were found in a plastic bag carried by the defendant.  PW17 arrested him for "Theft".  He remained silent under caution. 

16.  In his video recorded interview, the defendant said "In this month, I stole the phones and cash in the restaurant because of greed.  And the tablet not belong to me."  He also admitted that he picked up the Letters on 4 July 2022 from the ground outside Nos.112-114 Fuk Wing Street.  He stole the Letters in order to conceal the tablet and mobile phone contained in his plastic bag.  The defendant has specifically admitted his burglary acts in Charges 1, 2, 3, 4, 11 and 12.

Mitigation & Sentence

17. The defendant is 36 and has 1 conviction record, which involved a "simple possession" offence. Defence counsel Mr. Tracy informed me that the defendant came to Hong Kong from the Philippines lawfully on 14 June 2018. In July 2018, he became a Form 8 holder. The defendant is single but has 5 children as a result of different relationships. The ages of his children range from 15 to 2; three of them are in the Philippines and two in Hong Kong.

18. In mitigation, Mr. Tracy submitted that the defendant committed the present offences because he wanted to make a little extra money for his de facto family in Hong Kong. Mr. Tracy described the 12 burglaries as the "sneak in" type, which, he submitted, warrants a lower starting point. He also stressed that no one was alarmed by the defendant's presence and no property was damaged.

19. Prosecuting counsel Mr. Ching confirmed that there was no evidence of "breaking in" or forcible entry in Charges 1 to 12. He also confirmed that the culprits depicted in the CCTV footage all wore surgical masks. In other words, the evidence against the defendant came primarily from his own admissions. I will bear this in mind.

20. I have sympathy for people who need to escape from their homeland for various reasons (political, religious or otherwise)  to seek refuge in another country. I understand that the verification of a non- refoulement claim can be a lengthy process. I also appreciate that disappointment and frustration may result from the unknown period of waiting. Be that as it may, Form 8 holders must behave themselves and obey the law in return for the hospitality extended to them by Hong Kong.

21. As a Form 8 holder, although the defendant is unable to earn any income, his basic needs such as housing and food are provided for by the government and/or NGOs. In any event, being in financial difficulty (however serious)  is no mitigating factor for committing a crime.

22. I have borne in mind the principles set out by the Court of Appeal on sentencing criminals with Form 8 holder status[1]. By their nature as well as the circumstances of their commission, the present burglary offences clearly have a serious detrimental effect on the community at large. Mr. Tracy has fairly accepted that the defendant's immigration status constitutes an aggravating feature in terms of sentencing.

23. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. Committing a series of burglaries is also an aggravating factor[2]. Even if I adopt a lower than usual starting point as suggested by Mr. Tracy, with the 2 aggravating features mentioned above, a starting point of 2 years' imprisonment for each of the 12 burglary offences is inevitable. Having balanced all factors, I consider 2 years' imprisonment an appropriate and just starting point. With the timely guilty plea, the sentence is reduced to 16 months. Apart from this, I see no other mitigating factors which warrant any further reduction. For Charges 1 to 12, I sentence the defendant to 16 months' imprisonment each.

24. For Charge 13, I adopt a starting point of 3 months' imprisonment. With the timely guilty plea, the sentence is reduced to 2 months. I sentence the defendant to 2 months' imprisonment for this charge.

25. Bearing in mind the totality principle, I consider a global starting point of 5 years appropriate for all 13 charges. I would reduce it to 4.5 years to reflect the fact that the evidence against the defendant in Charges 1 to 12 came primarily from his own admissions[3]. With the timely guilty pleas, the overall sentence becomes 36 months. Hence, I order the sentences to run in the following manner :-

(i)   Charges 1 and 2 concurrent;

(ii)   Charges 3 and 4 concurrent, but 3 months consecutive to Charges 1 and 2;

(iii)   Charges 5 and 6 concurrent, but 4 months consecutive to Charges 1 to 4;

(iv)   Charges 7 and 8 concurrent, but 4 months consecutive to Charges 1 to 6;

(v)   Charges 9 and 10 concurrent, but 4 months consecutive to Charges 1 to 8;

(vi)   Charges 11 and 12 concurrent, but 4 months consecutive to Charges 1 to 10;

(vii)   1 month in Charge 13 consecutive to Charges 1 to 12;

Thus, arriving at a total prison term of 36 months.