HKSAR v. BERMEJO SALVADOR KIM DAGON

DCCC 1345/2024

[2025] HKDC 1493

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1345 OF 2024

--------------------------

---------------------------

---------------------------------------

REASONS FOR SENTENCE

---------------------------------------

1.  The defendant pleads guilty to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210. He admits the facts presented by the prosecution. Upon his plea and the facts that he has admitted, he is convicted as charged.

Facts

2.  The offence took place in the early hours of 27 July 2024 inside Shop No. UG39, Olympian City 2, No. 18 Hoi Ting Road, Tai Kok  Tsui, Kowloon (“The Shop”).  It was a furniture shop.

3.  The Shop closed its business on 26 July 2024 at around 8:30 p.m.  When the staff Mr. Tsang left the Shop, he noticed that a laptop (“the Laptop”) was placed on the computer rack at the cashier counter.  When Mr. Tsang returned to the Shop at around 11:30 a.m. the following day, he noticed that the Laptop was missing. 

4.  The video footages produced by the CCTV system of the Shop captured that the Defendant entered the Shop at around 4:03 a.m. on 27 July 2024 and stole the Laptop.

5.  On 29 July 2024 at around 1 p.m., PC22631 stopped the defendant for enquiries at Sham Mong Road because he found that the defendant resembled the culprit as captured in the relevant CCTV video footages.  At that time, the defendant was wearing the same headband and necklace as the culprit shown in the video footages. 

6.  At around 1:10 p.m., PC22631 arrested the defendant for committing the offence of burglary. Under caution, the defendant admitted that he had entered the Shop and stole the Laptop.  He further admitted that he had sold the Laptop for HK$200 in Sham Shui Po because he had no money.

7.  During a video-recorded interview conducted on the same day with the assistance of interpreters, the defendant stated under caution inter alia the following:

(a) He climbed into the Shop and stole the Laptop as he was hungry.

(b)He sold the Laptop to an unknown male in Sham Shui Po at the price of HK$200.

(c) He had already used up all the money.

(d)He confirmed that he was the culprit as captured in the relevant CCTV video footages.

(e) When he was arrested, he was wearing the same headband and necklace that he had worn when he committed the offence.

8.  The defendant admits that at the material times, he entered as a trespasser into the Shop and stole the Laptop there.  The Laptop has not been recovered.  It was worth HK$8,000.

Criminal record

9.  The defendant has 4 previous convictions involving 4 offences.  In April 2014 and September 2017, he was fined on each occasion for the offence of possession of dangerous drugs. In March 2021, he was sentenced to one week’s imprisonment suspended for 12 months for the offence of common assault.  In August 2022, he was sentenced to be detained in the drug addiction treatment centre for the offence of theft. He was released from custody on 22 February 2023.

Personal and family background

10.  The defendant was born on 28 January 1994 in the Philippines.  He is now 31 years old.  He is single.  He received his education up to Form 4 secondary level in the Philippines. 

11.  The defendant’s grandfather was a professional musician. He came to Hong Kong and became a Hong Kong resident.  The defendant’s parents later settled in Hong Kong in around 1995.  The defendant also moved to Hong Kong in 2009 when he was about 16 years old.

12.  The defendant is single and lives with his parents.  His father is about 63 years old and works as a cargo delivery worker.  His mother is about 58 years old and works as a front desk worker at the Western Union money exchange shop. The defendant has two sisters. The elder one is 25 years old and works as a hotel receptionist; the younger one is 20 years old and works as a gym instructor.  Both of them are single.

13.  After moving to Hong Kong, the defendant worked as a part-time bartender and restaurant waiter earning around HK$60 per hour for 8 years. At the same time, he also worked as a part-time guitarist of a live band in Lan Kwan Fong every Saturday and Sunday, earning around HK$600 per night for around 3 years.  His total monthly income was around HK$12,000.  However, at the time of the offence, he had become unemployed for one month.

Mitigation

14.  Mr. Ng, learned counsel for the defendant, informs me that the defendant broke up with his girlfriend about a month before the offence.  His girlfriend was the singer and the defendant was the guitarist of the same live band.  They had been together for about 3 years.  After breaking up, the girlfriend became very emotional. She scolded and caused trouble to the defendant whenever she saw him, even when he was working in his workplace.  The defendant had no alternative but quitted all his work as a guitarist in the live band and as a bartender and restaurant worker.  He became unemployed. However, during the month after breaking up with his girlfriend, he went out with his friends to drink, eat and smoke a lot with a view to overcoming his sadness caused by the relationship breakdown.  As a result, he used up all his savings. 

15.  Mr. Ng further informs me that on the day in question, the defendant walked past the Shop.  He noticed that the door of the Shop was not fully covered to the top, and that he could make use of the nearby escalator as a jumping point to climb over the door and enter the Shop. After entry, he noticed the Laptop on the cashier counter, and stole it in order to get some money for food.  Mr. Ng stresses that the defendant could have stolen many other items but he did not do so. 

16.  Mr. Ng points out that there were no aggravating features in the crime committed by the defendant. The burglary did not involve a sophisticated plan.  The defendant acted alone. His method of breaking in was simple and crude. He did not use any burglary tool. He did not damage anything in the Shop.  The Shop lost property worth only HK$8,000 which was not a particularly large sum of money.

17.  Mr. Ng submits that the sentencing tariff of 30 months’ imprisonment is applicable, and that the only possible aggravating factor is that the defendant has 4 previous convictions, including one for theft.  Mr. Ng stresses that this was the first time that the defendant committed burglary. Mr. Ng is of the view that the starting point for the defendant’s sentence should not be more than 36 months’ imprisonment.

18.  Mr. Ng points out that the defendant made a full confession to the offence at the time of his arrest and during the subsequent video-recorded interview.  His full co-operation with the police has set the record straight and saved valuable time in police investigation.  His guilty plea also saves the court’s time and limited resources.

19.  Mr. Ng also says that the defendant now fully understands the seriousness of his offence.  During his remand in custody since July 2024, the defendant reflects deeply and knows that it was very foolish for him to commit the offence. He realizes that financial hardship is not an excuse. He is very remorseful.  He promises not to re-offend.

Reasons for sentence

20.  Mr. Ng does not ask for a non-custodial sentence.  He is clearly right because burglary has always been regarded by the courts in Hong Kong to be a very serious offence.  The Court of Appeal has reiterated time and again that unless there are very special circumstances in the case or there are exceptionally strong mitigating factors, the proper sentencing option for this offence is imprisonment even if the defendant pleads guilty and has a clear record: HKSAR v Wong Yiu Kuen[1], HKSAR v Po Yan Chuen[2], and HKSAR v Wan Ka Kit[3].

21.  As to the length of the prison term, the Court of Appeal has laid down the tariff that, for a non-domestic burglary, the usual starting point is 30 months’ imprisonment. The defendant committed the offence inside the Shop which was clearly a non-domestic premises. Mr. Ng is absolutely right when he submits that the conventional sentencing tariff is applicable in this case.

22.  I also accept everything that has been said by Mr. Ng during his thorough and persuasive mitigation.  I have considered the case of HKSAR v Cheng Wai Kai[4] that Mr. Ng has cited.  I accept that there was no aggravating feature in the offence committed by the defendant other than his previous convictions including his conviction for the offence of theft. He committed the present offence of burglary only about a year and a half after he had served his sentence for the theft offence.  I rule that the starting point of the defendant’s sentence should be adjusted upward for 3 months to reflect this aggravating feature.  There is no other ground to increase the sentence further.  The starting point of the defendant’s sentence before mitigation is therefore one of 33 months’ imprisonment.

23.  On the mitigation side, as submitted by Mr. Ng, financial hardship is not an excuse for the defendant to have committed the offence, especially when his financial hardship resulted not from any noble cause, but from his excessive spending. 

24.  On the other hand, I accept that the defendant is truly remorseful. He is fully cooperative in the police investigation and he enters a timely guilty plea in court.  He is entitled to have one-third discount of his sentence.  It is however also clear that there is no other mitigating factor that may reduce his sentence any further.

25.  For these reasons, for this offence of burglary, the defendant is sentenced to serve a term of imprisonment for 22 months.

[1] [2002] 1 HKLRD 712

[2] CACC232/2001

[3] [2006] 3 HKLRD 9

[4] CACC338 & 339/2007