HKSAR v. BAUTISTA RODRIGUEZ LUIS DANIEL

DCCC 6/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 6 OF 2016

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

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

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

Reasons for Sentence

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

1.  The defendant has pleaded guilty to one offence of burglary, and the charge the defendant faces is evidenced by admissions made by the defendant.

2.  The amended Summary of Facts, which has been admitted, shows that CCTV footage obtained from a CCTV installed in the lobby of the lift of Fife Court in Mong Kok showed two men entering that building at about 10.15 am on 11 November 2015, and the same two men exiting the building together at 10.32 am the same day.  The CCTV footage revealed that one of the men was wearing a white checked shirt and a black cap.

3.  The next day, on 12 November 2015, the defendant was seen to be wearing a white checked shirt.  He was together with another person.  He was intercepted by the police after being asked to stopped.

4.  Subsequently, it has been agreed that it was discovered that the man wearing the white checked shirt captured in the building’s CCTV footage on 11 November 2015 was the defendant, because under caution, the defendant said, “I didn’t do the breaking door in the incident.  I go away after I see the thing because I scary.  I decided going out of the building.”  What that somewhat broken English evidence is is the defendant had entered the common parts of that building to look for something to steal, and that was reinforced and confirmed by a video‑recorded interview that the defendant gave later on.

5.  In that interview, he said that he had come to Hong Kong from the Philippines on 21 October 2015.  He used a Mexican passport, and lived at Mirador Mansion on Nathan Road.  He became acquainted with a Colombian man called Mauricio at a bar in Wan Chai on 9 November 2015.

6.  On 11 November, at about 9 am, he met Mauricio and followed Mauricio to the building, Fife Court.  The main gate of the building was open, and the guard did not stop them entering the building. The defendant’s purpose of entering the building was to steal bicycles, something for his ticket, which was his ticket back to Mexico.  He said he had planned to take something from outside.  A bicycle may be something for selling.  “Maybe I think bicycle for selling.”

7.  He then went on to say that he and Mauricio went to the top floor of the building and knocked on some of the doors of the flats situated there.  Mauricio discovered a vacant flat and took out tools to prise open the door.  The defendant says he refused to do this, he was afraid to do so, and as a result, that flat was not broken into.  Mauricio and the defendant stayed in the building for 10 minutes, then exited the building together, and Mauricio informed the defendant he would find another person to break into the vacant flat.

8.  The defendant admitted he was going to steal a bicycle or take something located from outside the flats situated in the building, and he did not have the courage to break into any of the flats. 

9.  That is the basis on which the charge is evidenced and admitted by the defendant.

10.  As far as the defendant’s background is concerned, in Hong Kong he is of clear record.  He is aged 31 years, and he is a Mexican citizen.  He is married.  He has children, a 2-year‑old daughter and two sons, and he is involved in running a family textile business in Mexico City.  I am told that he had gone on a business trip to Asia to source items for the family textile business.  He had gone to the Philippines, formed a relationship with a woman there, and come to Hong Kong for leisure. She had become pregnant, and when it was time to return to Mexico City, he needed cash to extend the ticket that he had already taken, and this enterprise to Fife Court was partly determined by his need for money to purchase an extended ticket.

11.  The defendant’s mitigation obviously relies upon his clear record.  Secondly, the burglary case was committed by the defendant entering as a trespasser the common parts of the building at Fife Court and entering those premises with the intent to steal therein.  The defendant’s admissions do not include him stealing any items in the common parts of the building or entering any of the residential flats within the building.  The defendant also relies upon the fact that the proof of this offence is entirely the result of the defendant’s own confession.  Without that confession there would be simply insufficient evidence to establish the offence against him, and the defendant says these factors should be taken into account in determining the level of sentencing to be imposed upon him.

12.  This charge relates to the burglary of a domestic premises.  There is a guideline sentence for such burglaries, and a person of clear record, after trial, can expect a starting point for sentence of 3 years’ imprisonment for committing a domestic premises burglary.

13.  The defence say that that starting point is not necessarily a  hard and fast rule in relation to the way in which a burglary might be committed - for example, in this case, the burglary did not involve the defendant entering individual homes - and that a lower starting point can be adopted in a case where the defendant does not enter the individual homes and confines his activities to the common parts of the building.

14.  The support for that proposition comes in the case of HKSAR v Suen Chi Wai [2015] 5 HKLRD 33.  In that case, the defendant had entered the common parts of a building and had removed some copper strips from grounding wire, and the court determined that a proper starting point for sentence for that offence was one of 30 months’ imprisonment.

15.  Mr Beel points out in this case that in this case, the defendant did not actually take anything, whereas in the case of Suen Chi Wai he stole some of the copper wiring, and says that in this case, the court should consider adopting a lower starting point than the court adopted in Suen Chi Wai.

16.  I take the point that the defendant’s involvement in this case was simply to enter the building with Mauricio, and did not involve taking anything or any attempt to break into a residential part of the building, save for I think there is an admission that they knocked on the doors of flats situated there.

17.  Having considered all these factors, I consider that in this case, a starting point of 27 months’ imprisonment should be adopted. 

18.  The defendant is then entitled to a one-third discount from that figure, which gives a sentence at this point of 18 months’ imprisonment.

19.  Another factor to be considered in the determination of the level of sentencing is that the apprehension of the offence results entirely from the defendant’s admission, as without this there would be no charge that could be brought.  This can and should result in a further discount to sentence.  In Hong Kong this has been represented by a further reduction to the sentence after the deduction for plea of guilty, rather than enhanced deduction for plea or a lower starting point, and the level of reduction of the sentence is very much in the discretion of the court.

20.  I consider that in this case, for this factor, a further 6 months should be reduced from the sentence, which gives a final sentence of imprisonment for this offence of 12 months’ imprisonment.

21.  The sentence of the court will be one of 12 months’ imprisonment.