HKSAR v. CASTRO RAMOS MARILYN ELIANA AND OTHERS

DCCC 442/2019

[2020] HKDC 151

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 442 OF 2019

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Reasons for Sentence

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1.  The five defendants have pleaded guilty to a single charge of burglary. The burglary is presented as a joint enterprise. All five defendants are nationals of Chile.

2.  The burglary was, in fact, in the nature of an aggravated pickpocketing committed inside a mixed domestic and commercial building in Sheung Wan.  Entry into that building is by password or key.  The five defendants all entered Hong Kong between 13 and 18 February 2019, and on 19 February they had gathered in Sheung Wan, where the victim, PW1, had withdrawn HK$46,000 from a Bank of China branch on Possession Street.  He had then gone to an exchange shop and changed the money into RMB40,000, divided into $10,000 stacks, and placed in a bag that he was carrying.

3.  The victim then went to the building where the burglary took place, where the door was open.  He took the lift to go to the 5th floor.  The 1st, 2nd, 4th and 5th defendants came into the lift with him, and then it would appear there were diversionary actions took place so that the victim would not be aware that money was being taken from his bag. 

4.  The victim found, on exiting the lift, that some 30,000 (that is, three stacks of the Renminbi) were missing from his bag.  He then alerted a security guard and, in fact, when the lift doors had opened, the 1st, 2nd, 4th and 5th defendants were still in the lift, and he made an accusation to them and then he said he was pushed around. 

5.  The whole of the burglary and the preceding events were captured on CCTV cameras.  It would appear from that that all five defendants’ involvement in the offence was shown, with various of the defendants following the victim in Sheung Wan, acting as lookout, surrounding him in the lift.  The 4th defendant had been the one who appeared to actually take the money and the 4th defendant was in fact later found with a cutter.  The 3rd defendant was not present at the moment when the theft took place in the lift, but had been involved at an earlier stage.

6.  The defendants were arrested later in and around Mong Kok.  The 4th defendant was found with a cutter at that time. 

7.  The 1st, 2nd and 4th defendants would admit the offence under caution, the 3rd and 5th defendants giving explanations for their presence. 

8.  What can be gained from the facts in addition to the facts of the burglary is the defendants all acted together, which is an aggravating factor to any burglary, and I believe, from the dates on which they came to Hong Kong, the proximity of that to the burglary, and the reasons given by these defendants for their presence in Hong Kong, the conclusion can be drawn that they had come here in order to commit offences, or certainly this offence.  That is also another aggravating factor in respect of the burglary.

9.  As far as the defendants themselves are concerned, their antecedents are as follows. 

10.  The 1st defendant is now aged 39, from Chile, lived with her family, it is said, in that country, has clear record in Hong Kong.

11.  2nd defendant is aged 36 at the time of taking the antecedents.  She is said to be, in the antecedents, married to the 5th defendant, with three daughters in Chile. 

12.  The 3rd defendant is aged 68, again from Chile. The antecedents say he lives with family and is married; clear record. 

13.  The 4th defendant is aged 52, has one conviction in Hong Kong, which was subsequent to this offence, where a suspended sentence was ordered by the court.  At the time of the offence, the defendant would have been a clear record. 

14.  The 5th defendant is aged 40, described as being a taxi driver in Chile, has three daughters and is married to the 2nd defendant.  This defendant also has a conviction in Hong Kong for trafficking, which would appear to again be subsequent to the commission of this offence, so at the time of committing the offence, defendant was of clear record.

15.  I note the matters that are raised in mitigation by each of the defendants in relation to their personal circumstances and their family circumstances.  They are compelling but do not necessarily amount to facts that could reduce the starting point for sentence or be added as extra mitigation.  All defendants, of course, would have the mitigation of their pleas of guilty, which entitle them to a one-third discount from a starting point for sentence. 

16.  In respect of the 3rd defendant’s mitigation, mitigation was advanced in relation to his medical condition.  That was investigated and there is a medical report from the Correctional Services Department, which appears to show that the medical problems this defendant has, and there are a number of them, are being treated with various medications.  The report itself would not justify any further reduction in sentence beyond that the defendant is already entitled to.  His medical problems seem to be well controlled. 

17.  This defendant has also offered compensation. He has a sum in his property and he has offered it as compensation, which is a clear sign of his remorse.  I will consider that when dealing with his sentence.

18.  Turning to the starting point for sentence in a case such as this, the premises are described in the facts as being a domestic mixed premises, the burglary taking place in the lift of that premises, which is a common area and not inside any of the individual units.  It has been said that, in a case such as that, it is said that a starting point lower than the customary one can be entertained. 

19.  Now, the customary starting point for a person who pleads not guilty and is of clear record for a domestic premises burglary is 36 months’ imprisonment.  The case that justifies a lower starting point that could be taken, I think the starting point for sentence adopted in that case was 30 months’ imprisonment.

20.  In this case, there was no forceful entry, although the victim was subjected to pressure at the time of the burglary. This was done in order to divert his attention from the fact that theft was taking place.  There is some suggestion of pushing later on, but the burglary had been completed by the time that took place.

21.  In this case, the initial starting point before aggravating factors are taken into consideration, would suggest a starting point in the region of 30 months’ imprisonment.  I do also take into account that this has elements of pickpocketing in it and it really is a pickpocketing that took place inside a building.

22.  My initial starting point before consideration of the aggravating factors in this case is going to be one of 27 months’ imprisonment. 

23.  I have already alluded to the two aggravating factors I find here:  firstly, the joint enterprise, and, secondly, in my view, these defendants clearly came here to act as a gang committing thefts. 

24.  They deny this or they provide other explanations, but their actions within a short time and within proximity to their entry into Hong Kong and the nature of their lives in Chile, where they are, on the face of it, within the poorer community, are clearly illustrative of the fact they were here not for the purpose of sightseeing or shopping, but had come here to commit crime.  They are, as I say, people with low wages in South America, travelling a third of the way across the world, away from their homes.  Clearly they were not here as tourists.

25.  These two factors will increase the starting point.  Added together, they would increase the starting point by 6 months to 33 months’ imprisonment.

26.  I said I have already noted the individual factors put forward in mitigation by each defendant.  With the exception of the 3rd defendant, save for their pleas of guilty, none of them would constitute a mitigating factor that would reduce the starting point further than should be granted for their pleas of guilty.

27.  The 3rd defendant has offered what money he has as compensation.  The court can take that into account and I will take it into account.  The sum as a proportion of the overall total is not large, but this defendant has shown willing and is prepared to show his remorse through giving back to the victim this sum of what I believe is $2,400, which for him must be a considerable amount of money.

28.  So the sentences after reduction for the one-third plea of guilty from the starting point of 33 months will be as follows:

(1) the 1st defendant is sentenced to 22 months;

(2) the 2nd defendant is sentenced to 22 months;

(3) 3rd defendant, there is a sentence of 22 months, which is reduced by a further month for the compensation order that will be made in his case. His sentence will be one of 21 months’ imprisonment. There will also be a compensation order in respect of him for the victim for $2,400;

(4) 4th defendant is sentenced to 22 months; and

(5) the 5th defendant is sentenced to 22 months.

(Discussion re exhibits)

29.  As far as the 3rd defendant is concerned, I will also make an order for the 3rd defendant to have access to his prisoner property in order to obtain the money, should that be necessary.