HKSAR v. BARBOSA NUNEZ CRISTIAN

DCCC1314/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1314 OF 2011

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Reasons for Sentence

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1.  The defendant pleaded guilty to one count of burglary and was convicted accordingly. The facts are quite straight forward. The subject premises is a domestic flat on 13/F of Shing Wan Mansion situated at 451 – 457 Hennessy Road, Wanchai.

2.  The owner and occupier of the said flat went overseas and she asked her sister Lau Yuk-kuen (Lau) to take care of the flat. At about 3 pm on 15 February 2011, a security guard of the management office of the building noticed that the wooden door to the flat was left ajar and the mental gate was locked. 

3.  On the next morning, the security guard noticed the situation unchanged but the lights inside the flat was on. No one answered the door.  The security guard then contacted Lau and informed her of the situation. 

4.  Lau went to the said flat on 17 February 2011 and saw that the flat was in total disarray.  She found the following items missing:

(i) One 52 inch LCD TV;

(ii) One fax machine;

(iii) One electric water kettle;

(iv) Two platinum necklaces with the total value of about $20,000.

5.  Police found a piece of scotch tape placed on the latch of the main door and subsequently found fingerprints on the said scotch tape and on the piece of glass over a wooden cabinet.  The fingerprints were found to match that of the defendant.  The defendant was arrested on 24 October 2011. 

6.  Under caution, the defendant admitted that he had entered the flat previously but denied he stole anything therein.  None of the stolen property could be recovered.

Mitigation

7.  The defendant is now aged 31, married and has a 9-year-old son.  He came to Hong Kong in 1990 under the sponsorship of his mother and up to now, the defendant has no right of abode in Hong Kong but he is not an asylum seeker.  He stays in Hong Kong under the recognisance. 

8.  The defendant was last convicted of one count of loitering and two counts of theft and was sentenced to 2 months imprisonment. The defendant was discharged from prison about three weeks before his arrest in the present case.  The defendant pleaded guilty to the charge and full credit should be given to him.

Sentence

9.  The defendant had a total of 16 convictions and most of them related to theft offences.  His last conviction was in September 2011 and upon enquiry, I was told that the offences of the last convictions were committed on the same day in August 2011.

10.  Had the present offence, which occurred in February 2011, been brought together with those of the last convictions, the defendant should be entitled to have certain sentences made concurrent.

11.  In any event, the most substantial mitigation factor for the defendant is his guilty plea for which he is entitled to have one-third discount in sentence.  The victim did suffer loss as some valuable property was stolen.

12.  In normal circumstances, the starting point for burglary involving domestic premises is 3 years.  I will give full credit to the guilty plea entered by the defendant and reduce the sentence to 2 years. As I mentioned earlier, had this case been brought together with other offences, the defendant might have certain sentences made concurrent under the totality principle.  Accordingly, I further reduce the present sentence by 6 months and sentence the defendant to 1½ years’ imprisonment.