HKSAR v. MENDEZ TRUJILLO MARIO

DCCC 637/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 637 OF 2016

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Reasons for Sentence

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1.  The defendant pleaded guilty to a substantive charge of burglary and a second charge of attempted burglary.

2.  The facts have been agreed and I have convicted the defendant of those offences.

3.  The Summary of Facts shows that the burglary and the attempted burglary occurred at adjacent premises at Rooms 1903 and 1904 of a premises called Crawford House in Central.  The initial premises that was broken into was Room 1904, which is the clinic of a dermatologist, and the adjacent room, which is 1903, was occupied by what is described as a precious stones trading company called Pioneer Gemstones.

4.  At about 1 o’clock on 19 March 2016, the clinic, which was situated at Room 1904, was locked, and the alarm was set for that room at around 2.30 on the afternoon of 19 March.  On 20 March at around 2.08 pm a burglar alarm was found to be going off at the company, and a team of police officers responded to that report.  They made their way to Room 1903, and two male persons, one of whom is the defendant, were seen at a corridor leaving that area with some speed.

5.  Eventually the defendant was apprehended on the ground floor of Crawford House.  The other person escaped.

6.  The defendant was searched, and a relevant item found on him was what is described as a golden chicken ornament which had been taken from Room 1904.  When the police investigated the scene at Room 1904, there were what are described as signs of ransacking, and tools were found. They included an electric drill, drill bits, crowbars, chisels, and gloves.

7.  The defendant’s DNA was found on the electric drill.  Furthermore, multiple holes had been drilled on the wall that separated Room 1903 and Room 1904, damaging the wall in an area of approximately 30 centimetres by 30 centimetres.  The defendant’s fingerprint was also found on a plastic container which had had that golden chicken ornament placed inside it.

8.  The defendant was interviewed under caution and accepted he had been in Room 1904 and had stolen the golden chicken ornament.

9.  The facts show that Room 1904 had been entered and items had been stolen therein, but also there had been an attempt to enter 1903 using the equipment such as the electric drill.

10.  As far as the defendant’s antecedents are concerned, we find that he is from Colombia.  He has a clear record.  I am told that he hails from Bogota.  He is aged 26, and he has, I am told, a son and a daughter.  As far as his personal circumstances are concerned, he was not formally married, and had a relationship with a lady - I think he describes a common law relationship - by which he had a 5-year-old son and a 1‑year‑old daughter.

11.  I am told he has a clear record in Hong Kong and also in Colombia.

12.  In Bogota he managed some shops and earned about US$200 per month.  He had come out on a trip to the Far East from Colombia, and before coming to Hong Kong had been in Malaysia.  I am told he arrived in Hong Kong on 11 March on a side trip from Kuala Lumpur.  He had stayed in guesthouses in Hong Kong, where he had met two other persons with whom the burglary had been committed.  His reasons for involving himself in the burglary were that he was running low on money and had been tempted by the return that could be obtained from being a party to this burglary.  He had been promised a total of US$4,000 in payment.  Of course, that never materialised.  He was arrested at the scene.

13.  The CCTV camera of the scene shows the other people arrived on the scene at 11.20 on the day of the burglary, and the defendant arrived almost two hours later, at 1 o’clock, into Room 1904, and the alarm had gone off some one hour later.

14.  The drilling had gone through the wall of 1904 but not the wall of 1903.

15.  I am also informed, as far as the defendant’s personal circumstances are concerned, that he has now lost contact with his partner and children as a result of his incarceration in Hong Kong.

16.  Turning to the appropriate starting point for sentence, there is a general guideline for burglary cases.  This would be a non-domestic premises, or a non-residential premises.  In normal circumstances, for a single offence of non‑domestic burglary committed by a person of clear record, a sentence of 30 months’ imprisonment would be imposed after trial.

17.  Of course, this is somewhat different from what I would call a run of the mill burglary, and it has been said that where the planning and execution involves heavy equipment and instruments and suchlike, that the general guideline is not particularly appropriate, and that other considerations can be brought into being.

18.  In the case of HKSAR v Cheng Wai Kai, various aggravating factors that may accompany the commission of an offence of burglary have been identified, and in that case they are set out as being, firstly, that the offence is carefully planned and skilfully executed, involving the use of heavy instrument or equipment; secondly, the offence is committed by two or more people; thirdly, the offence targets substantial premises and involves substantial properties; fourthly, the offender is a professional burglar, not just an opportunist; fifthly, the offender has previous convictions, particularly a previous conviction of a similar nature; and sixthly, the offender commits multiple offences.

19.  In this case, various of those factors can be identified as appropriate.  Firstly, the offence is carefully planned and skilfully executed; involved the use of heavy instrument or equipment; there was obviously a degree of planning involved in this burglary - the bringing in of equipment to drill through the wall and the use of the electric drills could be described as heavy instrument or equipment.  Secondly, the offence was clearly committed by two or more people.

20.  The offence targets a substantial premises.  One of the targets of the burglaries was the trading company called Pioneer Gemstone, which I think could possibly be described as a substantial property. The fourth factor is the defendant is a professional burglar and not just an opportunist.  It can be said in this case the defendant was not just an opportunist.  He was taking part in what is, from objective consideration, a professional burglary.  The fifth consideration is not applicable - the defendant has no previous convictions - and finally, the defendant commits multiple offences.  Obviously multiple offences are committed here, but they are effectively one transaction.  1904 was broken into in order, it would appear, to get into 1903, there being little of value in 1904 beyond the golden chicken ornament the defendant appears to have impulsively taken.

21.  Having regard to all these factors, one must consider an appropriate starting point.  I will say at this stage that I do not consider the fact the defendant is not a Hong Kong citizen to be an aggravating factor in this case.  The burglary was committed some days after the defendant had entered into Hong Kong, so it cannot be inferred, on the basis of the evidence I have, that the defendant’s sole purpose in coming to Hong Kong was to commit this burglary.

22.  I shall approach the sentence for the defendant in this way.  Having regard to these aggravating factors, what I shall do is take a starting point of 45 months’ imprisonment on each charge.

23.  The defendant is entitled to a one-third discount, which reduces the sentence on each charge to one of 30 months’ imprisonment.

24.  Having regard to the nature of these burglaries - that they are, on the face of them, related transactions - and having regard to overall totality, I shall order that the sentences on both burglaries in Charges 1 and 2 be served concurrently, giving a total sentence of 30 months’ imprisonment.