HKSAR v. VILLANUEVA ANGEL RAFANAN

DCCC 1048/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1048 OF 2016

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Reasons for Sentence

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1.  This defendant has pleaded guilty to two counts of burglary. Both of the burgled premises were in 22 to 24 Gillies Avenue South, Hunghom. Essentially, it is the same building. The majority of the units in that building had already been purchased by a developer or developers ready to redevelop the entire plot. There were in fact few, if any, occupants left in the building. It has become quite common to see burglary cases under similar circumstances where burglars go into buildings such as this, looking for valuables left behind to sell.

2.  In this case, the second premises had already been purchased and was owned by a developer.  From the photographs, it had almost been emptied out of personal belongings.  The premises of Charge 1 had not yet been sold to a developer but was not occupied by its owner or anybody else.  The owner said he rarely went to the premises.  And as seen from photographs, it was used to some extent for storage.  These premises are technically domestic premises, but I accept they are not occupied and certainly in the case of the second premises, obviously not occupied.  I do not believe the usual starting point should apply.  The defendant is a burglar but more akin to an opportunistic thief. 

3.  On 28 August 2016, the owner of the first premises informed the police that the frame of his gate had been prised open and the lock of his door damaged.  He said that cash of $2,000, a bottle of whisky and a bottle of Japanese wine, two computer monitors, two suitcases and some bags as well as clothing were missing. 

4.  The police attended the premises to investigate.  They then found the defendant on the 3rd floor, the floor above in the second premises and arrested him.  They found on the defendant all of the items reported missing from the first premises except the $2,000 cash. 

5.  There were - and it has been confirmed today - no tools found on the defendant.  The gate frame of the first premises, as I have said, was prised off the wall.  This would have required tools.  This could not have been done by bare hands.  No tools were found on the defendant. The defendant has explained he in fact saw the frame prised open and the door unlocked.  So he took the opportunity to go in to steal.  He only had $40 to his name and was looking for something valuable to sell to feed his child.

6.  During the police investigation, they found a cigarette butt inside a room of the first premises of Charge 1.  It has been confirmed that the DNA left on the cigarette butt was not the defendant’s, and the man identified by the DNA on the cigarette butt the defendant says was not known to him.  Therefore, it is possible that the first premises had been broken into by another man unknown to the defendant, and it was that man who stole the victim’s cash.  The defendant has denied from the beginning stealing $2,000 cash, and the prosecution amended the 1st charge today to reflect this.

7.  The court was informed on 15 March this year that the defendant after a conference with Mr Stephenson intended to plead guilty.  Mr Stephenson did not represent the defendant on the plea date in the District Court, but the defendant has told Mr Stephenson that he refused to plead guilty on the plea date because he was fixated by the accusation he stole $2,000 cash.  The defendant is not a man with a legal background.  In fact, he is a man with very little.  So I can accept the scenario that the accusation he also stole $2,000 cash would have been his motivation to insist he not plead guilty. 

8.  There is a new policy for discounts applied to sentences according to the Court of Appeal authority HKSAR v Ngo Van Nam & Others CACC 418 of 2014.  This new policy should apply to the defendant as he has indicated a plea of not guilty and had this trial date set down after September 2016.  However, the new guidelines are subject to the overriding discretion of the court.  In my view, if there had been discussions between the prosecution and defence back in November 2016, then the defendant may have after legal advice indicated a plea then.  In such a situation, I find that this authority will not apply to this defendant today. In my view, he still deserves a one-third discount to his pleas.  His best mitigation is his pleas. 

9.  He is not a man with a clear record.  He has four previous convictions obtained over three court appearances.  They do include a similar offence of burglary in 2013 when he was sentenced to a 2-year term of imprisonment, and I have been kindly supplied with the reasons for that sentence by Miss Yip today. 

10.  According to mitigation and the antecedent, the defendant is a Filipino national, 41 years old and came to Hong Kong in 1995.  He had full-time employment.  When he was arrested, he was unemployed and penniless.  Against that background, he told the police he in fact has been addicted to methamphetamine for about 10 years now.  That could explain his criminal record.  He is married but his wife is divorcing him.  She lives in the Philippines with their two children. He in Hong Kong has a girlfriend as well as a 5-year-old child with her. His girlfriend is in prison at the moment and their child in foster care.  What a tragic childhood for her so far.  Foster care is inevitable as she does not have a responsible mother or a father.  In fact, neither do his children in the Philippines but at least they have their mother.    

11.  I have a letter from the defendant expressing his remorse, promises to not reoffend and stresses he wants to provide for his children and be a good father.  If the defendant does not change his ways now, there is little chance he will successfully reform.  He must have realised by now that drug addiction will lead to him spiralling downwards, and it is always the innocent that suffer in such a situation, those being his children.  It is not too late.  His children are still young.  He can still make amends.

12.  Defendant, please stand up.  Normally, a court would consider a 3 years’ starting point for a burglary of a domestic premises and 2 and a half years for a non-domestic premises such as shops and restaurants.  As I have said, in this case, this building is mainly unoccupied, one of those many in this area awaiting redevelopment.  The developers technically own all the property inside those premises, but for all intents and purposes, they are essentially abandoned items.  The developers would have no use for them.  As I have said, I find this scenario means I can take a lower-than-normal starting point.

13.  Having taken all mitigation into account as well as the facts of the case and the plea, I will for both charges take a starting point of 2 years’ imprisonment.  As I have said, this defendant despite his late indication of plea will still benefit from a discount of one-third from that starting point.  Therefore, after that discount is applied, for each charge, the defendant is sentenced to 1 year and 4 months’ imprisonment. Both of these offences took place on the same day.  I will order both sentences be served concurrently.  Therefore, total sentence for both charges is one of 1 year and 4 months’ imprisonment.  Do you understand?

DEFENDANT: Yes, your Honour.