HKSAR v. BERMUDEZ BOLIVAR JOSE ALEJANDRO AND OTHERS

DCCC496/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 496 OF 2009

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Reasons for Sentence

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1.  The four defendants in the present case are all Columbians. They pleaded guilty to one joint charge of burglary and in addition D1 further pleaded guilty to one count of possession of false travel document.

2.  Regarding burglary, the premises in question were the safe-deposit box area of a bank. In normal circumstances, customers wishing to get access to their safe-deposit boxes, first of all, they needed to fill in a form, after that, called a staff member who presumably checked that everything was in order and satisfied that this person has an account in the safe-deposit box. Then the staff member would open the door for the customer.

3.  In the particular branch in this case, they had two doors installed in the safe-deposit box area, one glass door and the other, a metal gate. These two doors remained locked all the time, and it was agreed that the door could be easily opened. D4 flew in on 26 February 2009. The other defendants arrived a day later.

4.  The prosecution case was that three days in a row before the date of offence, the defendant group paid a number of visits to another branch of the same bank examining the area leading up to the safe-deposit box area. On the day of the offence, at around 11.30 in the morning, D3 and 4, pretending to make inquiry, were engaging in conversation with a bank staff while D1 and D2 were down in the basement where the safe-deposit box area was. They were there to do the job. D1 was holding D2 up so that he could reach the lock at the top of the door to tamper with it.

5.  Eventually, they were able to enter, open the glass door and enter the safe box area. Five minutes later, D2 appeared at the glass door again. He put a black bag in front of the open glass door to prevent the door from closing.

6.  While D1 and D2 were inside the safe-deposit box area, Miss Chan, a teller of the branch, saw from the CCTV that a black bag was being placed at the glass door leading to the safe-deposit box area and that there was an unknown male squatting on the ground next to the glass door. Miss Chan then proceeded to the basement to have lunch. Whilst she was on her way to the basement, she met D1 and D2 at the staircase. Each of D1 and D2 were carrying a black bag in their hands and they left the branch together. Shortly after D1 and D2 left the branch, D3 and D4 did the same.

7.  Later, at around 1 pm on the same day, a bank staff member finally viewed the CCTV recordings. She found that D1 and D2 had entered the safe-deposit box area at around 11.30 am and had left the safe-deposit box area with two black bags. Having checked the safe, nothing suspicious was found. Later in the day, the bank called in locksmiths to check, and it was found that nine safe-deposit boxes had been tampered and prise marks were found on the locks of the safe-deposit boxes. A report was made to the police.

8.  The users of the safe-deposit boxes concerned were contacted. Their losses were particularised in the charge. They are mainly watches, jewelleries, cameras and cash of different currency. The total value was about $10.44 million. All the defendants were later arrested. About $2 million worth of stolen properties were recovered from their persons as well as their places in their hotel. In the search of D1’s hotel room, police also found a forged US passport, which is the subject matter of the 2nd charge. It bears a photo different from D1.

Mitigation

9.  These four Columbians are all married men with children, and this was their first visit to Hong Kong, and they all have a clean record. The court was told that they were businessmen back in their country, operating shops to sell clothes, and in the case of D4 who also sold auto parts. It was submitted by defence counsel that these men came to Hong Kong initially to look for business opportunities here as well as in China.

10.  One day, D1 was changing money at the bank here. He noticed the security or the lack of security the bank had here. Then after discussion among the defendants, they decided to burgle the bank in question. On the day before the offence, D1 bought screwdrivers for their job. And on the following day, they executed their burglary plan.

11.  Counsel stressed that this is not a case where the offender needed to break a very sophisticated security system, it only took two defendants to engage the bank staff while D1 and D2 made their way to the safe-deposit box area. The locks were easily opened. No security guard was there to watch. They only used a screwdriver to open the safe-deposit box.

Sentencing

12.  Now I come to sentencing, apart from your guilty plea, there are not any other mitigating features of real substance. You all have clean records, but you only stayed in Hong Kong for a short period of time in your whole life up to this moment, your clean record does not mean much to the society here.

13.  For the offence of burglary, there are sentencing guidelines. For non-domestic premises, in the absence of aggravation, a term under consideration is one of 2½ years. You said through your counsel that you came here for business initially but later evolved into a criminal after seeing the lack of security measures at the bank here. I find this very hard to believe. The crime you committed was not of a simple and opportunistic nature. It was carefully planned, well organised and skilfully executed.

14.  I am not here to criticise the bank in question about their security measures. All I would like to say is the security measures they had for their customers and the vigilance of staff in question have left a lot to be desired. Your counsel said this case involved no sophisticated system the offender needed to break. But the logic is the more sophisticated the system the offender needed to break, the greater will be the criminality.

15.  On the facts before the court, they are serious. There are sufficient aggravating features to allow the court to depart from the normal sentencing guidelines: first, four persons acting in concert to burgle; secondly, the burglary was carefully planned, well organised, skilfully executed; thirdly, the value of stolen properties was high, whether in monetary terms or in sentimental terms.

16.  It was carefully planned because, as the facts show, the defendant group had been casing the joint three days in a row before they went to commit the crime- checked out the situation, found out how the system worked, and on the day when they went to burgle, it was well organised, two of them not just acting as lookout. They were there engaging in conversation with the bank staff. The sole purpose was to distract attention from their real purpose, i.e. to burgle. The other two were down at the basement to do the job.

17.  Counsel said D1 was the instigator of this crime. On the facts before the court, I find each one of you equally culpable. Each was equally important. What you did is equally important to the success of your crime. As the facts reveal, a customer needed the assistance of a staff member to get access to the safe-deposit box, and you have two of you distracting the bank staff so that the other two could do the job. In terms of criminality, everyone was the same.

18.  And I have also said it was skilfully executed because, as the facts show, staff having noticed something fishy going on down at the safe-deposit box area, went down to have a check. The initial check at 1 pm revealed nothing to be amiss. It was only much later when the bank called in the locksmith, did they discover that some of the safe-deposit boxes had been tampered with.

19.  You have stolen properties valued up to about $10.44 million. Only $2 million worth of property are recovered, leaving about $8.5 million worth of property lost. That is quite a lot of money.

20.  Regarding the 2nd charge, possession of false travel document, a false American passport, I accept that there is no evidence to say D1 had used the false passport in any sinister way. But the fact that he had it in his possession, I could not think of any legitimate purpose he could put it to use. Counsel said the photo on the passport did not look like the defendant at all; it was useless to him. This I do not agree. A false passport always has a price for a criminal like the 1st defendant.

21.  On the charge of burglary, the fact that it involved non-domestic premises, I take 2½ years as starting point, and for the aggravation I mentioned, I add 2 years on top. That brings it up to 4½ years. Reducingit by one-third to reflect your pleas, for Charge 1, each one of you is sentenced to 3 years’ imprisonment.

22.  Charge 2, I take 18 months as starting point and reduce it to 12 to reflect his plea. D1 for Charge 2 is sentenced to one year’s imprisonment. These two offences are separate and distinct. Even taking into account of the totality principle, I still order these two terms to run consecutively. For D1, he is sentenced to a total term of 4 years.