HKSAR v. FRANCISCO CHEVIE REBONG AND ANOTHER

DCCC 524 & 525/2020

(Consolidated)

[2021] HKDC 1465

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 524 & 525 OF 2020

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REASONS FOR SENTENCE FOR D2

1.  On 23 August 2021 D2 pleaded guilty to one joint charge of burglary of Alvy’s restaurant in Kennedy Town together with D1 and Mariano Gerard B, contrary to section 11 of the Theft Ordinance[1] (charge 1)  and one charge of possession of 2.85 grammes of cannabis in herbal form, contrary to section 8 of the Dangerous Drugs Ordinance[2] (charge 3). Sentence was adjourned pending the trial of D1.

2.  D1 was convicted after trial and will be sentenced on 15 December 2021.  Mariano Gerard B has absconded. 

3.  Full particulars of the offences are set out in the amended summary of facts admitted by D2 on 23 August 2021. 

4.  In summary at around 2:15 a.m. on 27 November 2019 D2 and another male entered Alvy’s.  D2 forced open a locker and stole the money inside the locker and then left Alvy’s together with the other male. 

5.  The burglary was captured on CCTV.  D2 and the unknown male were not staff members or customers of Alvy’s.

6.  The burglary was discovered in the afternoon of the same day when a total of $63,300 was found missing from the locker[3].

7.  D2 was arrested on 4 December 2019 inside “Jamie’s Italian” restaurant in Tsim Sha Tsui and taken to Tsim Sha Tsui Police Station.  Upon conducting a body search the police found in the left pocket of D2’s jacket a plastic bag containing the cannabis.  Under caution D2 admitted the cannabis was for his own consumption.

8.  In a video recorded interview D2 admitted, inter alia, that two months before the burglary D1 and her boyfriend Mariano planned the burglary and asked him if he wanted to earn quick money; prior to the burglary D1 showed him and Mariano a key claiming the key could open the locker; when he arrived at the restaurant to commit the burglary the door was already open and a few days after the burglary Mariano gave him $3,000 cash.

Mitigation

9.  In passing sentence, I have carefully considered the oral and written submission of Mr Hotten, including that D2, who is now 22, single and lives with his girlfriend, has been in regular employment[4].

10.  I have read D2’s mitigation letters in which he says he has learnt his lesson and that with the support of his girlfriend, who is in court today, believes he can turn his life around. 

Burglary

11.  In his second letter D2 says that after his father passed away he was lost, sad and heartbroken and that his friends took advantage of his situation by asking him to help them commit the burglary[5]. Mr Hotten states that D2 received only $5,000 from the burglary which he used to pay off his debts[6].

12.  The correct starting point for a single burglary of commercial premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment.

13.  In his letters D2 asks for a suspended sentence or probation.  Whilst sympathetic with the defendant’s loss, the death of his father is not in my view an exceptional circumstance warranting suspension of the sentence[7].   In 2014 D2 was placed on probation for an offence of attempted burglary. 

14.  I am satisfied there are no grounds to depart from the guidelines.

Aggravating factors

15.  The commission of burglary by two or more persons is an aggravating feature of sentence[8].  In the circumstances I enhance the starting point by 3 months to 2 years and 9 months’ imprisonment. 

16.  Aggravating factors also include where the offender has previous convictions, in particular for burglary.  As noted already the defendant was sentenced to probation for attempted burglary in 2014.  Taking into account this was five years ago and the defendant was only 15, I do not further enhance the sentence by reason of previous offending.

17.  Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 10 months’ imprisonment.

Delay

18.  Mr Hotten asks the court to take into account that punishment has been hanging over D2’s head for almost two years, through no fault of his[9].

19.  Delay in bringing an offender to justice is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; where the delay has given the offender the opportunity to rehabilitate himself; whether restitution has been made; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[10].

20.  D2 first appeared in court on 6 December 2019.  The case was transferred to the District Court on 10 July 2020.  Having looked at the court record, the time taken to transfer the case to the District Court would appear to be because of the pandemic.  After the first appearance in the District Court on 28 July 2020 the case was adjourned for D2 to apply for legal aid followed by adjournments for D2 to obtain legal advice and for the case to be consolidated with D1.  On 10 February 2021 D2 indicated his pleas of guilty whereas D1 indicated a plea of not guilty. Sentence of D2 was therefore adjourned pending the trial of D1. 

21.  In his first letter D2 refers to doing voluntary work helping the homeless and setting up charities in Nepal.  When asked by the court for details of the voluntary/charity work the defence were unable to furnish the court with any particulars save that D2 sent money to his mother for charities in Nepal.

22.  D2 did not stay out of trouble.  D2 committed a second offence of possession of cannabis in April 2020[11]. After careful consideration I am satisfied the sentence should not be further reduced by reason of the time taken for D2 to be sentenced.

Possession of cannabis

23.  Mr Hotten states the defendant possessed the cannabis for his own consumption and that he has not touched any other drug[12]. In court Mr Hotten states D2 possessed the cannabis to smoke after finishing work.

24.  There are no guidelines for possession of cannabis in herbal form.  A financial penalty is appropriate for small quantities where there are no aggravating features[13].

25.  Notwithstanding D2 possessed the cannabis at work I am prepared to accept the cannabis was for his consumption and not enhance any sentence by reason of latent risk. 

26.  Although this is not the first conviction for possession of cannabis, this was the first time D2 was arrested for possession of cannabis.  I am satisfied a financial penalty is appropriate. 

27.  D2 is fined $4,000. $2,000 is to be taken from bail, D2 consenting to the bail money being taken in payment of any fine imposed by the court.  The balance of $2,000 is to be paid within 7 days.  In default of payment D2 will serve 14 days’ imprisonment consecutive to the sentence on charge 1.

28.  D2 is convicted and sentenced as follows:

Charge 1 – 1 year and 10 month’s imprisonment; and

Charge 3 – $4,000 fine, $2,000 from bail and $2,000 within 7 days. In default of payment D2 will serve 14 days’ imprisonment consecutive to the sentence on charge 1.