HKSAR v. BARRERA PATINO JULIO ALDEMAR AND OTHERS

DCCC 28/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 28 OF 2016

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REASONS FOR SENTENCE

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1.  The 1^st, 2^nd and 3^rd defendants were jointly charged with one count of burglary (Charge 1).  The 1^st defendant was also charged with one count of going equipped for stealing (Charge 2).  The 1^st defendant pleaded guilty to charge 1 and 2.  The 2^nd defendant pleaded not guilty to charge 1 and he was convicted after trial.  The 3^rd defendant pleaded not guilty to charge 1 but pleaded guilty to an alternative charge of handling stolen goods (Charge 3), in which the prosecution accepted his plea.  Upon the application by prosecution, Charge 1 against the 3^rd defendant is to be kept in court file, not to be proceeded with without the leave of the court. 

Facts

2.  Ms Chu and her daughter Ms Yip resided in the premises at Stanley Main Street, Stanley, Hong Kong.  On 26 October 2015 at around 7:30 am, they left home for work.  When Ms Chu returned home at around 3:20 pm, she discovered that the door look had been prized-open and the premises was burgled.  A number of valuable items placed inside the safe box and the drawer of the cabinet, including jewelry, a lady wrist watch (worth around HK$3,600) and some cash, the total value being HK$210,000, were stolen. They reported the matters to the police. 

3.  It was discovered that the tool box belonging to Ms Chu and Ms Yip had been removed from the balcony to the kitchen and left open on the floor.  A red-handled screwdriver had been removed from the toolbox.  Its tip had been bent and the screwdriver discarded on the floor of the living room.  A pair of pilers from the tool box had been used to break open the safe box.  The pilers were submitted for forensic examination and the 1^st defendant’s DNA was located on the handle of the pilers.  The 2^nd defendant’s passport was found inside the bedroom of the premises (Charge 1).

4.  In the afternoon on 28 October 2015, a male bearing the 3^rd defendant’s passport presented Ms Chu’s lady wrist watch for pawning at a pawn shop in Temple Street, Kowloon.  The staff at the pawn shop verified the male’s identity and ensured that he was the person as shown in the photograph of the passport.  The watch was pawned for HK$800 (Charge 3).

5.  At 18:45 hours on 28 October 2015, two security officers of the Discovery Bay Management Services Limited notice the 1^st, 2^nd and 3^rd defendants in the vicinity of Discover Bay Plaza, Lantau Island, Hong Kong.  Police were alerted and they intercepted all 3 defendants.  A screwdriver, 2 pair of gloves and 2 peaked caps were found inside the 1^st defendant’s rucksack. 

6.  The 1^st defendant admitted in the video-recorded interviews under caution that he bought the screwdriver and gloves in Mongkok for the purpose of stealing.  He would press the doorbell of a residential flat to see if anybody was inside.  If no one answered he would take the opportunity to enter the premises and steal therein (Charge 2).

Mitigation

7.  The 1^st, 2^nd and 3^rd defendants have clear records. 

8.  The 1^st Defendant is 37 years old.  He is single.  He lived with his mother, aged 84, younger sister aged 32 and her 2 months old daughter in Columbia.  The 1^st Defendant was working as a part-time salesman selling garments and he was the bread winner of the whole family, as her sister’s income was modest and could not support herself and her daughter. 

9.  Mr Cheung provided to the court a written submission of mitigation for the 1^st defendant.  Several letters, written by the 1^st defendant, his mother and his sister, together with medical certificates of defendant’s mother were also submitted. In gist, the 1^st defendant expressed his deep remorse for committing the present offences and the 1^st defendant together with his family members asked for the court’s leniency so that the 1^st defendant could return to Columbia to take care of them.  The medical records revealed that the 1^st defendant’s mother suffered from diabetics, depression, lost of vision of her left eye, and her left leg was amputated. 

10.  The 2^nd defendant is 27 years old.  He lived with his parents and 2 children in Columbia.  It is submitted that the 2^nd defendant came to Hong Kong for the purpose of buying some garments and resold them in Columbia.

11.  The 3^rd defendant is 35 years old.   He lived with his parents and 4 children in Columbia.  Mr Beel informed the court that the 3^rd defendant came to Hong Kong on a date later than the 1^st and 2^nd defendants and somehow came to know them.   This was his first visit to Hong Kong and he intended to travel to China.  As he was out of travelling funds he resided with the 1^st and 2^nd defendants in the same hotel room to save expenses. 

12.  Mr Beel submitted that the value of the watch that the 3^rd defendant dealt with was not substantial.  He was given the watch to pawn and he received $800 as a loan. Mr Beel referred me to the case of HKSAR v Xiao Wei [2003] 3 HKLRD 1063regarding the sentence for the offence of handling stolen goods.

Sentence

13.  The starting point for burglary of domestic premises committed by a first offender with no aggravating factor is 3 years’ imprisonment : see Attorney General v Lui Kam Chi  [1993] 1 HKC 215.

14.  There is no sentencing tariff for the offence of going equipped for stealing.  The maximum sentence for this offence is 3 years’ imprisonment.  The 1^st defendant admitted that he possessed the items intending to commit burglary.  Those are simple tools which assisted him to enter the premises and concealed his identity.  I will adopt a starting point of 9 months’ imprisonment. 

15.  The 1^st defendant pleaded guilty to both charges and he is entitled to the usual one-third discount.  I noted that the 1^st defendant’s mother is not in good health and his entire family members are financially dependent on him. However, neither of this ground can attract any further reduction of sentence, apart from his plea of guilty.  The 1^st defendant committed the present offence with the full knowledge that his mother is ill and no one would be able to take care of his family when he was arrested.

16.  The 1^st defendant is sentenced to 2 years’ imprisonment for charge 1 and 6 months’ imprisonment for charge 2.

17.  The 1^st defendant was found in possession of those items for stealing two days after he committed the burglary.   Having taken into account the totality principle,  and bearing in mind the financial hardships suffered by the 1^st defendant’s family, I ordered 2 months of the sentence for Charge 2 to be run consecutively to the sentence for charge 1.  For the 1^st defendant, he is sentenced to 2 years’ and 2 months imprisonment.

18.  The 2^nd defendant is convicted after trial and hence he is not entitled to any reduction at all. For charge 1, the 2^nd defendant is sentenced to 3 years’ imprisonment.

19.  There is no sentencing guideline for the offence of handling stolen goods.  In Xiao Wei, a watch was stolen in a domestic burglary.  The watch was pawned by Xiao six hours after the burglary was taken place.  Xiao is a mainlander and he had a number of previous convictions in Hong Kong.  The trial judge adopted a starting point of 3 years’ imprisonment and enhanced it to 4 years to reflect his bad record and he came to Hong Kong for the purpose of stealing.  The Court of Appeal held that the appropriate starting point was 18 months’ imprisonment, as the burglary was not accompanied by threats of violence or with the assistance of dangerous weapon.  Further, Xiao had no direct knowledge of the means by which the watch was stolen and the value of the watch was not particularly high. 

20.  The 3^rd defendant pawned the watch two days after the burglary was committed.  There was no evidence that he had any knowledge as to how the watch was stolen.  The value of the watch was not substantial, and it could not be said that the 3^rd defendant came to Hong Kong for the purpose of committing crime.  I am satisfied that facts of Xiao Wei and the 3^rd defendant are strikingly similar. 

21.  Accordingly, for charge 3, I will adopt a starting point of 18 months’ imprisonment.  The 3^rd defendant is entitled to the one-third discount on his guilty plea.  Hence the 3^rd defendant is sentenced to 12 months’ imprisonment for Charge 3.