HKSAR v. CAYANONG DANILO TAGALOGUIN

DCCC 966/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 966 OF 2015

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Reasons for Sentence

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1.   The defendant has pleaded guilty four offences of burglary, 11 offences of theft, and one offence of breach of condition of stay.

2.   The defendant himself is a Filipino national.  He has lived in Hong Kong with his wife, who is also a Filipino national.

3.   The offences arise out of the defendant’s wife’s employment as a domestic helper with a family in Sai Kung.  The family reside in two houses in a village in Sai Kung, and in the facts they are described as Houses 1 and 2.  It appears that in the summer - that is, between June and August of this year - the family travelled out of Hong Kong.  During that time, the defendant was permitted to stay, presumably with his wife, in the house described as House 1, and while he was in that house, House 1, he stole the keys to the other family house, which is House 2, and that can be seen in the 1st charge of burglary.

4.   He then repeatedly entered House 2 to steal cash of $11,000 - that is seen in Charge 2; a bank card, which is Charge 3; and an Octopus card, which is Charge 4.

5.   The defendant, whilst he was in House 2, was able to get the PIN number for the bank card, and he was able to use it, and during August he used it on the 11 occasions which form the 11 charges of theft.  He took small amounts of money on each occasion, but it totals to $22,000-odd in total.

6.   Finally, it was disclosed, following the defendant’s arrest, that he had overstayed in Hong Kong since 16 July 2011.

7.   The defendant was arrested on 14 August 2015, and he made a full admission in the subsequent video‑recorded interviews that were taken from him by the police.  He admitted he had taken keys from a drawer in House 1 and realised he could get access to House 2.  He had taken the items from House 2.  He had used the bank card to get the money, usually spending it in amusement game centres.  He had taken an Octopus card as well.  He said that he had overstayed in Hong Kong because he did not want to separate from his wife.

8.   The antecedents of the defendant are as follows.  He is of clear record in Hong Kong.  He is now 47 years old, and he is married.  His wife is 36 years old and works as a domestic helper.  The defendant had himself been a domestic helper in Hong Kong, but was unemployed at the time of these offences.  He in fact achieved college education in the Philippines, and has family there.

9.   The defendant was employed as a domestic helper until 2011, and he says still that he stayed in Hong Kong because he did not want to be separated from his wife.  In mitigation he attributes the commission of these offences simply to greed.

10.   The description of the burglaries shows that they were of what were unoccupied houses, and no force was used to break into either of the houses, and the defendant knew they were empty at the time. There is a repetition of the burglaries certainly of the second house, but that is not in fact an aggravating factor in itself.

11.   The charges of theft relate to withdrawals of cash from the same bank card of the victim.  The charges of theft, to a certain extent, overlap with the burglaries themselves.

12.   The matters put forward in mitigation are the defendant has pleaded guilty, he is remorseful, he has surrendered himself to the police and was co‑operative, he has the support of his family, he is a person of clear record in Hong Kong, that no tool or weapon was used by the defendant in any of these offences.

13.   As I say, the offences themselves show a certain overlap, and that can be dealt with by any sentences of imprisonment being made to be served partly consecutively or concurrently.

14.   Dealing with the appropriate approach to sentence, for the four burglary charges, each relates to burglary of residential premises.  There is a clear guideline as to the approach the court should take in relation to the burglary of such premises, and that is that the starting point for sentence for burglary of a residential premises by a person of otherwise clear record, such as the defendant, is one of 3 years’ imprisonment, and that will be the appropriate starting point for the first four charges which relate to that form of burglary.

15.   Of course, the defendant has pleaded guilty.  There are no aggravating factors in relation to that sentence, so the defendant is entitled to a full one-third discount from that figure.

16.   That leads to a sentence on the first four charges of 2 years’ imprisonment, or 24 months’ imprisonment.

17.   The next 11 charges relate to the defendant’s use of the bank card and the theft of the moneys; the choses in action, in fact.  What I propose to do in respect of each of those offences is take the same starting point for sentence, and that will be one of 4½ months’ imprisonment, which I will reduce to 3 months’ imprisonment for the defendant’s plea of guilty.

18.   So on each of the charges - that is, from Charges 5 through to 15 - he will be sentenced to 3 months’ imprisonment.

19.   On Charge 16 the defendant has overstayed, by my calculations, for about 4 years.  Clearly, an overstay of such a length requires a sentence of imprisonment to be imposed; an immediate custodial sentence.

20.   What I will do is take a starting point of 4½ months’ imprisonment, and reduce that to 3 months’ imprisonment for the defendant’s plea of guilty.

21.   As I have observed, the offences all occurred on different occasions and can be served consecutively.  To serve them consecutively would obviously lead to a very lengthy sentence which is inappropriate for these particular facts.  I must calculate what is, I believe, to be the appropriate overall totality for sentence, and impose that sentence, and adjust the various sentences accordingly.

22.   The burglaries represent the burglaries of two separate premises, and of the second premises on more than one occasion, so there must be some element of there being a consecutive form of sentencing for the burglary offences.  However, it must also take into account the nature of these burglaries.

23.   What I shall do is order that the burglaries of the second house, which is the 2nd, 3rd and 4th offences, be served concurrently to one another, but 4 months of those sentences be served consecutively to the first sentence of imprisonment.

24.   As I said, there is some overlap of the theft offences with the burglary offences.  I shall order that the sentences on all the theft offences - that is, Charges 5 through to 15 - be served concurrently to each other, but 2 months of those sentences be served consecutively to the sentences on Charges 1 to 4.

25.   Presently, that leads to a sentence of 30 months’ imprisonment.

26.   These offences did occur while the defendant was overstaying in Hong Kong, so that must to a certain extent be represented in the final totality of sentence.

27.   What I shall order simply in respect of Charge 3 is that 1 month of that sentence be served consecutively to the other charges - that is, 1 to 15, the balance concurrently.

28.   That leads to an overall sentence of 31 months’ imprisonment for all of these offences.