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DCCC 81/2020
[2020] HKDC 670
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 81 OF 2020
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HKSAR |
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PANAGUITON Mary Joy De La Pena |
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| Present: |
Mr James Cheng, Counsel on fiat, for HKSAR |
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Mr David Boyton instructed by Messrs. Francis Kong & Co. assigned by the Director of Legal Aid for the defendant. |
| Offence: |
[1]-[3] Burglary (入屋犯法罪) |
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REASONS FOR SENTENCE
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1. This is a case of repeat burglary. The defendant, a 31-year-old Pilipino maid whose employer (Madam Lui) is the principal of a nursery school, pleaded guilty before me to 3 counts of burglary.
2. The three burglaries occurred in the same nursery school in Tai Hang, Hong Kong Island where Madam Lui worked. On three different occasions between October and November 2019, the defendant had accompanied Madam Lui to the school in the morning; whilst at school, the defendant would sneak into the office of the vice-principal (Madam Wu) to take cash from her purse.
3. Madam Wu usually put her purse in the cabinet unlocked in her office, and when she had to pop out her office for a while, she would simply leave the door ajar.
4. The first occasion happened on 16 October when Madam Wu returned to her office under the circumstances as described in the preceding paragraph, she discovered $2,000 missing from her purse. The same thing happened about 3 weeks later on 5 November, this time she lost $1,500.
5. Despite being burglarized a second time, Madam Wu did not go to the police because she had no idea who did it but her office has since installed a surveillance camera.
6. On the third occasion (28 November), the original thief did come back to Madam Wu’s office and took two $500 banknotes from her purse. This time the defendant’s action was caught on the surveillance camera and when Madam Wu viewed the CCTV footage, she immediately recognized the thief to be the maid of the principal. Eventually a report was made to the police.
7. On the same day police officers went to the principal’s residence where they arrested the defendant who made a full confession for all three burglaries and recovered the two stolen $500 banknotes. As for the stolen cash from the earlier burglaries, she had sent some back home in the Philippines and spent the rest.
8. The defendant, who has never been in trouble with the law before, is single but has a 4-year-old son with her boyfriend. She received education up to secondary school level.
9. In mitigation, counsel for the defendant, Mr Boyton, contended that the instant case is different from the usual non-dwelling burglary in that she was no more than an opportunistic burglar. The defendant simply walked into an open office and stole whatever she found therein.
10. Mr Boyton further submitted that without her confession as to the two earlier burglaries, the prosecution would have no case against the defendant.
11. The court could depart from the usual sentencing guidelines and take a lower starting point, Mr Boyton submitted, citing in support various authorities such as Law Tin Yam CACC 258/2010, Sim Ka Wing CACC 450/2000 and Cheung To Ming [2006]2 HKLRD 259. Given the facts of the present case, I am inclined to agree with Mr Boyton on this point.
12. Obviously, the defendant had no permission to enter the vice-principal’s office while she was out, but the fact that she left her door open and failed to secure her purse would likely attract intruders. I have no intention of blaming the victim for it, I just want to point out its vulnerability and there is no reason to make the burglar’s job any easier.
13. Such vulnerability could in some cases lessen the culpability of the burglar so much so that a sentencing court may depart from the usual sentencing guidelines. For non-domestic burglary, the guidelines suggest a starting point of 30 months in the absence of aggravating factors.
14. Turning to the present case, I am prepared to accept it as a case of opportunistic burglary. As such, I would take 18 months as the starting point for each offence, and reduce it by one-third to 12 months to reflect her timely pleas.
15. Taking into account the totality principle and the fact that it was her confession leading to her convictions in respect of the two earlier burglaries, I order that the term of charge 1 be run consecutively to two months of each subsequent charge and the total term is one of 16 months.
16. There being no reasons for any further reduction in sentence, the defendant is therefore sentenced to 16 months’ imprisonment.
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