HKSAR v. STO TOMAS MARCOS DE LEON

DCCC 1034/2018

[2020] HKDC 113

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1034 OF 2018

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REASONS FOR SENTENCE

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1.  In this case, the defendant Sto Tomas Marcos De Leon, is convicted of one charge of burglary. He pleaded guilty to the same and was convicted upon his plea and admission of facts.

2.  The facts reveal that on 28 July 2018 the defendant, together with another person (whom he claimed to be named “Unhell”), broke into a residential unit situated in North Point and took away a laptop computer, two mobile phones, a watch, four pairs of earrings, four packets of cigarettes, and $200 in cash.

3.  After the defendant was arrested, under caution, he admitted that he and Unhell went inside that room by its window and took away the properties.  None of the properties had been recovered.

4.  This is a burglary of a domestic premises.  There is very clear authority that burglary of domestic premises warrants a starting point of 36 months and I see no reason in the present case which would justify my departure from this guideline.

5.  The defendant is aged 43, single.  He came to Hong Kong in 2001 as a domestic helper/driver.  After the expiration of his contact in Hong Kong, he turned to apply to be a torture claimant and was granted a Form 8 Recognizance.  There is no evidence as to the status of his application, although, for the present purpose, it is not relevant.

6.  Prior to the present offence, he had a clear record.  However, as a holder of Form 8 Recognizance in Hong Kong, if he or she committed offence in Hong Kong, it is considered an aggravating factor.  I would have to add another 3 months to the starting point.

7.  I turn to consider other mitigating factors, the most relevant one being that he pleaded guilty.

8.  However, I note that he only pleaded guilty after this court had ruled that the cautioned statement against him was admissible.  Since it is a late plea, he is not entitled to the usual 30 per cent discount.  I would therefore adopt a 20 per cent discount and come down to the sentence of 31.2 months.

9.  The sentence of this case had been adjourned mainly because of the defence’s indication of his willingness to assist the police to arrest of his alleged co-defendant, namely Unhell.  The defendant had given a total of two statements: one at the time of arrest; second, in October 2019. 

10.  The court is further informed that, on the basis of his statement, Unhell was arrested and he was due to be brought to court.  However, there is no way to ensure when Unhell would be brought to justice and when the defendant’s service would be required.

11.  I take into account of a long delay in this case, part of which is not the fault of the defendant.  I decided to give him the benefit of the doubt and would consider he had given assistance to the prosecution.  Further delay would be a denial of justice.

12.  In so saying, the court is fully aware that there is no way to ensure that he would decide to remain in Hong Kong and give evidence on the day when Unhell is being tried, but since there is no definite date for this trial, if at all, I do not think that further delay would be beneficial to the image of the prosecution and the criminal justice system.

13.  I therefore would sentence him on the basis that he has offered assistance to this court and make a further deduction of 15 per cent.

14.  His sentence after deduction should be 26½ months.  I will round up the whole figure and sentence him to the term of imprisonment for 26 months.

15.  I have also considered the other circumstances of the case and the submissions of counsel for the defence.  I do not see any other matters which would justify my further exercise of discretion to sentence the defendant more leniently.

16.  So, in the circumstances, for the offence he is convicted of, he is sentenced to a total of 26 months’ imprisonment.