HKSAR v. CARDONA QUINCHIA CRISTIAN ALBERTO also known as CHAVEZ CANO DANIEL MARTIN

DCCC 525/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 525 OF 2014

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two offences of burglary. The offences occurred on the same day, 24 February 2014, in Tai Wo Village in Tai Po, the offence in Charge 1 occurring at No. 7B at Tai Wo Village and the offence in Charge 2 occurring at No. 20A in Tai Wo Village.

2.  In respect of the premises in Charge 1, they had been locked at about 7 am on that day and about 12 hours later, 7.45, when one of the residents returned, he found signs of ransacking and tampering, and the items that can be seen in Charge 1 of the charge sheet had been taken.

3.  As far as Charge 2 is concerned, on that same day, 24 February 2014, the house was locked between 6 and 7 pm and when a resident came back at 10.35, a window had been tampered with and there were signs of ransacking inside and the items in Charge 2 had been taken.

4.  The defendant was seen at about 7.41 that evening acting suspiciously nearby in Yuen Leng Village, Tai Po.  He was with another person at the time and the man fled.  The defendant boarded a minibus but was eventually intercepted nearby, about 1½ kilometres from the place where the first burglary occurred.

5.  Various items taken from the burglaries were found on the defendant on arrest, together with a map.

6.  The facts show that the total value of the items in Charge 1 is HKD 145,000 and in Charge 2 is HKD 15,090, and some of those items remain unrecovered:  in Charge 1, the value of those are HKD 33,500 and in Charge 2, HKD 11,000.

7.  The defendant has admitted those facts and I have convicted him accordingly.

8.  The defendant, we know, is a person of clear record. 

9.  There is information given in the antecedent statement that the defendant now says is untrue.  His mitigation is that he is not Mexican, as recorded in the statement, and does not have the name recorded in the statement, but is, in fact, a Columbian by the name of - I think it is - Cardona Quinchia.

10.  He is aged 24.  He has a clear record in Hong Kong.

11.  Mitigation is that he is a motorcycle repairer and trader in second-hand motorcycles from Columbia.  He has family in Columbia.  His father is still living.  He has four brothers.  He is a single man himself.

12.  He has written a mitigation letter in which he says he has deep remorse.  What we do know is he certainly has a clear record in Hong Kong.

13.  Mitigation put forward is that he went to Tai Po sightseeing (I have already indicated I find that to be untrue), that he committed the burglaries alone, and that the unrecovered items are lost as a result of his fleeing the scene. 

14.  Obviously, such statements seem questionable in the light of the other facts of the case. 

15.  Nevertheless, there is suspicion the defendant did not act alone, but no direct evidence that he did so.

16.  The starting point for a domestic burglary is quite clear.  The guideline authorities are quite clear that a person of clear record pleading guilty to a single offence involving a burglary of a domestic premises can expect a starting point for sentence of 3 years’ imprisonment.

17.  There is nothing in the case that can be proved evidentially, which I believe would require me to either aggravate or diminish that starting point in relation to each of these charges.

18.  So, clearly, in relation to Charge 1 and Charge 2, the starting point for sentence should be one of 3 years’ imprisonment; that is, 36 months’ imprisonment.

19.  The defendant has pleaded guilty, entitles him to a deduction of one-third from that sentence.

20.  So on each charge, there will be a sentence of 24 months’ imprisonment.

21.  The burglaries were, of necessity, committed separately and apart, and so are individually charged offences, and can be served, if necessary, consecutively.

22.  I have to consider the correct overall totality and Mr Chan correctly points out that they were committed in the same locus on the same day and logically could not have been committed too far apart in terms of time.

23.  Nevertheless, I think at least some element of the sentencing should reflect that these are two independent burglaries.

24.  What I shall do is order that, on the second charge, 3 months of that sentence be served consecutively to the first, leaving a total of 27 months’ imprisonment by way of sentencing.