HKSAR v. VARGAS TORRES CARLOS ANDRES AND OTHERS

DCCC156/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 156 OF 2013

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Reasons for Sentence

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1.   There are two charges in the Charge Sheet against the 3 defendants who are citizens of Columbia.  Each charge is a joint charge against all of them for the offence of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210.  All defendants plead guilty to their respective charges.

Facts

2.   These two burglary offences took place inside two flats on the 4^th floor of a building in Wanchai.  These two flats were domestic premises.  On 3 September 2012, the occupants of these two flats left their premises at about 10 a.m. and 11 a.m. respectively.  They had locked the wooden doors of their flats before leaving. 

3.   About 3:30 p.m. on the same day, the three defendants approached the building.  D1 waved at the security guard who was at the entrance of the building.  After the security guard had left his position, D1 started asking him for direction.  While D1 and the security guard were talking, D1 waved at D2 and D3 who then entered the building behind the back of the security guard.  After D1 had stopped talking to the guard, he went to the outside of a nearby building, where he kept on watching the entrance of the building where D2 and D3 had entered, and speaking to his mobile phone. 

4.   The actions of these defendants were noticed by a police constable who called for assistance.  About 4:50 p.m. on the same day when D2 and D3 left the building, police officersintercepted the three defendants.  D2 was found carrying 2 screwdrivers and 2 pairs of gloves while D3 was carrying a pair of gloves, a torch and a mobile phone.  In addition, D2 and D3 were found carrying property stolen from the two flats.  Full details of the stolen property were particularized in each charge.  The wooden doors of the two victimized flats were found being prized open. Telephone call records revealed that there had been 8 calls between the mobile phones held by D1 and D3 respectively between 3:34 p.m. and 4:49 p.m. on that day, during which there were no other calls between these two mobile phones.

Criminal record

5.   Each defendant has a clear record.

Personal and family background

6.  D1 is 38 years old.  He studied up to the junior high school level.  He is a clothes and toys seller by occupation.  He is married.  His wife is 36 years old.  He has a daughter aged 14 and a son aged 6 months.  All of them are living in Columbia.

7.  D2 is 32 years old.  He studied up to the junior high school level.  He works as a cook.  He is married.  His wife is 33 years old. His daughter is 4 years old.  Both of them are living in Columbia.

8.  D3 is 34 years old.  He studied up to the junior high school level.  He is also a cook by occupation. He is married.  His wife is 22 years old.  He has two sons aged 3 years old and 2 months old respectively.  All are living in Columbia.

Mitigation

9.  Solicitor for the defendant, Mr. Leung, submitted that while the offences committed by the defendants were serious, there were no aggravating circumstances.  He stressed that the offences took place in the daytime when the victimized flats were vacant, and that occupants of these flats had not been frightened or assaulted.  He submitted that the value of the stolen property was not substantial for an offence of this kind, and that they had been fully recovered.  Mr. Leung further pointed out that each defendant was very remorseful and that each tendered their apology to the people of Hong Kong.  He said that each defendant has vowed not to return to Hong Kong so that the chance of his reoffending was zero.  He pleaded for maximum leniency for each defendant so that they could return home as soon as possible to take care of their families.  Lastly, Mr. Leung asked the Court to consider the principle of totality so that the overall sentence for these two offences would not be excessive.  He referred this Court to the case of HKSAR v Lau Hiu Man (CACC396/2012) for reference.

Reasons for sentence

10.   Burglary has always been regarded by the courts in Hong Kong to be a very serious offence.  For this reason, the Court of Appeal has reiterated that unless there are very special circumstances in the case or there are exceptionally strong mitigating factors, the proper sentencing option for an offence of this kind is imprisonment even though the defendant pleads guilty and has a clear record: HKSAR v Wong Yiu Kuen [2002] 1 HKLRD 712; HKSAR v Po Yan Chuen (CACC232/2001), and HKSAR v Wan Ka Kit [2006] 3 HKLRD 9.

11.   I have considered the mitigation urged upon me for each defendant.  There is simply no ground for departing from the normal sentencing practice.  I find that the proper sentence to be imposed on each defendant is imprisonment.

12.   As far as the quantum is concerned, since the two burglary offences took place inside domestic premises, the proper starting point is 3 years’ imprisonment according to the tariff laid down by the Court of Appeal: Attorney General v Lui Kam Chi [1993] 1 HKC 215; HKSAR v Ng Wai Hing [2003] 2 HKLRD 338; HKSAR v Lau Pang [2004] 3 HKLRD 565. 

13.  I have considered the case of Lau Hiu Man.  Obviously, since the facts of that case were not the same as the present one, it is inevitable that the sentences will be different. 

14.  In my view, there is simply no reason to depart from the normal sentencing tariff.  I adopt 36 months’ imprisonment as the starting point for each charge for each defendant.

15.   In HKSAR v Cheng Wai Kai (CACC 338 & 379/2007), the Court of Appeal pointed out that the starting point could be adjusted upward if there were aggravating circumstances in the case.  Aggravating circumstances would include:

“(1) the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment;

(2) the offence is committed by two or more people;

(3) the offence targets at substantial premises and involves substantial properties;

(4) the offender is a professional burglar and not just an opportunist;

(5) the offender has previous convictions, particularly previous conviction of similar nature, and

(6) the offender commits multiple offences.”

16.   In the present case, the offences were committed by three persons acting in concert. It was also obvious that the offences were carefully planned as reflected by the fact that D1 pretended to ask the security guard of the building for direction in order to lure him to leave his guarding position and to distract his attention to create the opportunity for D2 and D3 to sneak into the building.  The telephone call record also revealed that while D2 and D3 were stealing inside the two flats, D1 was playing the role of a lookout and kept on communicating with D2 and D3 via the mobile phones.  On the other hand, the defendants had only used ordinary burglary equipment.  The value of the stolen property was not particularly substantial for an offence of this kind.  There is also no evidence to show that these defendants were coming to Hong Kong for the particular purpose of committing these offences.  All in all, there were some aggravating circumstances in this case that warranted an upward adjustment of the prison term.  In light of the aggravating circumstances that have been identified, I adjust the starting point for each charge in respect of each defendant upward by 3 months to 39 months’ imprisonment.

17.   The only mitigating factor in this case is the guilty plea of each defendant.  Each of them is entitled to have his sentence discounted by one third to reflect this mitigating factor.  Their family circumstances can hardly amount to mitigation.  They should have considered the hardship their family members would suffer if they were caught for their offences.

18.   For these reasons, I sentence each defendant to 26 months’ imprisonment for each charge.

19.   I shall now consider whether the two sentences for each defendant should run concurrently or consecutively, be it wholly or in part.  I shall consider the principle of totality which means that the overall prison term must not be too lengthy, but it must properly reflect the overall criminalities of the offences. 

20.   In the present case the two offences were committed on the same day in the same occasion.  However, the defendants had broken into two premises.  In my view, a wholly concurrent sentence would not properly reflect the overall criminalities of the offences, but the overall sentence should only be slightly longer than the sentence for one single charge.  Having these factors in mind, I am of the view that a total term of 28 months’ imprisonment for each defendant will be appropriate.  To give effect to this overall sentence, I order 2 months of the sentence for the 2^nd Charge to run consecutively to the sentence for the 1^st charge.