HKSAR v. GUZMAN BETANCUR JUAN CARLOS

CACC 37/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 37 OF 2015

(ON APPEAL FROM DCCC NO. 36 OF 2014)

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JUDGMENT
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1.  On 5 May 2014, the applicant was sentenced by HH Judge Woodcock to 2 years and 9 months’ imprisonment in respect of four charges, to which he had pleaded guilty; namely, two charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210; one charge of possession of a forged travel document, contrary to section 42(2)(c)(i) and (4) of the Immigration Ordinance, Cap 115; and one charge of making a false representation to an Immigration Assistant lawfully acting under or in the execution of Part II of the Immigration Ordinance, contrary to section 42(1)(a) of the Ordinance.

2.  On 2 February 2015, the applicant filed a Notice of application for leave to appeal out of time, by which stage his application has been out of time by almost 8 months.

The prosecution case

3.  The facts, which the applicant agreed, were as follows.  In the early morning of 7 July 2013, the applicant, a Colombian national with a genuine Columbian passport, approached the reception desk of the Peninsula Hotel, pretending to be the French occupant of Room 2316, and told the receptionist that he had left his room key inside his room.  After the applicant had provided the correct personal details of the true occupant of the room, the receptionist issued a new room key card to him.

4.  Later that afternoon, the applicant informed hotel reception that he had forgotten the combination number of the safe in his room.  Two staff members then attended the room and used a decoder to open the safe for him.  That evening, the true occupant of Room 2316 returned to his room and reported that items worth a total of HK$23,800 had gone missing from the room and the safe.  They were a laptop computer, a computer bag, a USB memory stick, a wallet, six credit cards and a pen (Charge 1).  None of the property has been recovered.

5.  On the morning of 12 July 2013, when a cleaner was cleaning Room 5033 of the Disneyland Hotel, the applicant appeared claiming to be the occupant of the room and then waited outside the room for the cleaner to complete his work.  When the cleaner had finished his task, he shut the room door and asked the applicant to open it with his room key, which the applicant did after a failed first attempt.

6.  Later that morning, posing as the occupant of the room, the applicant informed the house-keeping manager that he had forgotten the combination number of the safe in the room.  A staff member duly arrived to open the safe for the applicant with a decoder.  That evening, the true occupant of the room returned and reported to the hotel that he was unable to open the safe as the combination number had been altered.  When the safe was eventually opened with the help of the hotel staff, the occupant discovered that a quantity of cash had been stolen.  The exact quantity was later admitted under caution by the applicant upon his arrest to have been US$1,200 and 1,000 Indian Rupees (Charge 2).  None of the property has been recovered.

7.  The applicant then left Hong Kong using his Columbian passport on 13 July 2013.

8.  On 17 September 2013 the applicant returned to Hong Kong and entered the territory using a forged Mexican Passport in the name of Mendoza Vega Noe, which he presented to an Immigration Assistant (Charges 3 and 4).

9.  When the applicant had committed the offence at the Peninsula Hotel on 7 July 2013, his image had been captured by the hotel CCTV system.  Still-photographs showing the applicant’s appearance were developed from the CCTV footage, which were then sensibly circulated to the security personnel of various Hong Kong hotels.

10.  On 20 September 2013, a staff member of the Sheraton Hotel saw the applicant on 16th floor of the hotel and recognised him as the person depicted in the still-images.  The police were alerted.  They arrived shortly afterwards and arrested the applicant on the ground floor of the hotel.  Under caution, the applicant admitted the four offences.

11.  The police seized the forged Mexican passport at Chungking Mansions in Nathan Road, where the applicant had been staying after entering Hong Kong on 17 September 2013.

Reasons for sentence

12.  The applicant, a person of clear record in Hong Kong, was 37 years old at the time of his sentence.  In mitigation, he claimed that he had been HIV-positive for 20 years, and had been unable to pay for his treatment for the year prior to his arrest.  He said he committed the present offences under duress because his family members in Mexico had been threatened, and that he had come to Hong Kong in September 2013 to seek asylum.  Information was made available to the judge showing that the applicant had in fact made an asylum claim.

13.  In sentencing the applicant, the judge considered the claim that he had committed the offences under duress to be a bare assertion, and attached no weight it.  Relying on the case of HKSAR v Ng Wai Hung[1], in which the Court of Appeal had held that a burglary of a hotel room should attract at least the same sentence as that of domestic premises, the judge adopted a starting point of 3 years’ imprisonment in respect of Charges 1 and 2.  In respect of Charges 3 and 4, having considered the circumstances of the case, the judge adopted a starting point of 18 months’ imprisonment for each of the two charges.  Giving the applicant the usual one-third discount for his guilty pleas, the judge sentenced him to 2 years’ imprisonment on each of Charges 1 and 2, and 12 months’ imprisonment on each of Charges 3 and 4.  Taking totality into account, the judge ordered that 6 months of the sentence on Charge 2, and 3 months of the sentence on Charge 3, were to run consecutively to the 2 years’ imprisonment on Charge 1, while the sentence of 12 months’ imprisonment in respect of Charge 4 was to run concurrently with the sentence on Charge 1.  The resultant sentence was 2 years and 9 months’ imprisonment.

Reasons for making the application out of time

14.  In an affirmation attached to his notice of application for leave to appeal out of time filed on 2 February 2015, the applicant explained that he had delayed his application for leave to appeal as he perceived there was a conflict of interest arising from his complaint against the police.  That complaint appeared to have finally been dealt with when he filed notice of his application for leave.

A consideration of the submissions on the application being out of time

15.  In my judgment, no good reason has been given for the late application for leave to appeal against sentence in this case. However, as is customary, I shall examine the merits of the appeal to see whether the application should be granted.

Grounds of appeal against sentence

16.  In his home-made written submissions dated 12 March 2015, the applicant has acknowledged that he could not challenge the individual sentences passed on the four charges.  However, he seeks to have the two sentences on Charges 1 and 2 made concurrent.  He has repeated the same limited submission before me this morning.

Consideration of the grounds of appeal

17.  The judge was plainly right to make part of the sentence on Charge 2 consecutive to the sentence on Charge 1.  They were different burglaries, on different days at different hotels.  Indeed, the applicant was very fortunate that only 6 months’ imprisonment of the sentence on Charge 2 was ordered to run consecutively to the sentence on Charge 1.  It is rather obvious, from the applicant’s knowledge of the names and movements of the two hotel guests in question, that others must have been involved in the offences.

18.  As for the two Immigration offences (Charges 3 and 4), the judge was correct to order the sentences to run concurrently with each other.  However, the applicant was again very fortunate that only 3 months of the sentence on Charge 3 was ordered to run consecutively to the sentence on Charge 1.

19.  Possession and use of a forged passport to get into (or out of) Hong Kong is an extremely serious offence, particularly in these days of heightened awareness and fears of international terrorism, and such offences would have warranted a significantly higher consecutive element than 3 months’ imprisonment.  The seriousness of such offences can only be marked by making a significant part of the sentence consecutive to any other substantive offence which may have been committed by a defendant.

20.  The applicant could not have complained if his overall sentence in the circumstances of this particular case had been at least 3½ years’ imprisonment, even upon his pleas of guilty.  His sentence was, therefore, very lenient indeed.

21.  Leave to appeal against sentence out of time must therefore be refused and, in view of what I have just said, the applicant is informed of his right to renew his application for leave to appeal out of time to the Court of Appeal but, at the same time, duly warned of the consequences of so doing, which may include a direction for the loss of any time spent in custody pending his appeal, if the Court of Appeal were to come to the conclusion that there was no justification for the renewal of the application.