HKSAR v. FRANCISCO CHEVIE REBONG AND ANOTHER

DCCC 524 & 525/2020
(Consolidated)

[2021] HKDC 1574

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 524 & 525 OF 2020

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REASONS FOR SENTENCE FOR D1

1.  On 18 November 2021 D1 was convicted after trial of one joint charge of burglary of Alvy’s restaurant in Kennedy Town together with D2 and Mariano Gerard B, contrary to section 11 of the Theft Ordinance[1] (charge 1)  and one charge of doing a series of acts tending and intended to pervert the course of public justice, contrary to Common Law[2] (charge 2).

2.  D2 pleaded guilty to the burglary and was sentenced on 18 November 2021 to 1 year and 10 months’ imprisonment.  Mariano Gerard B has absconded. 

3.  Full particulars of the offences are set out in my reasons for verdict handed down on 18 November 2021.  Sentence on D1 was adjourned for a background report, D1 being a single mother of a young child.  D1 was remanded in custody pending sentence.

4.  In summary just after midnight on 27 November 2019 D1, a former employee of Alvy’s, went to Alvy’s for the first time since she resigned, purportedly to see Ms Gertos, an employee of Alvy’s who she had worked with previously. 

5.  D1 assisted Ms Gertos in doing the cash out, a role D1 had carried out when she worked at Alvy’s.  D1 opened the money locker, took the money bags out and gave them to Ms Gertos.  After Ms Gertos put the revenue of that day in the bags, D1 put the bags back in the money locker.   D1 and Ms Getros left Alvy’s at around 1:30 a.m.

6.  About 1 hour 20 minutes later at around 2:51 a.m. D2 and Mariano Gerard B, who was the boyfriend of D1, entered and burgled Alvy’s.  The burglary was captured on CCTV.  D2 forced open the money locker and stole the money inside the locker and then left Alvy’s together with Mariano Gerard B. 

7.  I was satisfied D1 had gone to Alvy’s earlier that night to check the location of the money and that there was money to steal.

8.  After the burglary D1 sent a series of messages on Facebook to Ms Gertos asking Ms Gertos not to tell the truth and that she would waive the money Ms Gertos owed her and give her an extra $1,000.

Mitigation

9.  In passing sentence, I have carefully considered everything said on behalf of D1 by Miss Zahir, including that D1, who has a clear record, is a single mother, a loving and caring mother and has a fully supportive family, who are in court today to lend their support. 

10.  I have read the mitigation letter written by the defendant in which she talks in detail about how she loves her daughter and how as a single mother she has cared for her daughter since her birth.  D1 says she plans on going back to work, first part-time and later full time when her daughter starts pre-nursery.  

11.  I have also read the letters written by D1’s mother and her elder sister.  The mother begs for a lighter sentence so that D1 can return home for Christmas and continue looking after her daughter.  The elder sister describes D1 as a caring sister, a loving daughter and an attentive and warm mother.  The sister says the family will support D1 and her daughter.

12.  D1’s friend Ms Yiu, who is also in court today to show her support, describes D1 as being like a sister who is very passionate and hard-working, an outstanding single parent who provides a good role model for her daughter and is an attentive and careful mother.

13.  I have read the letter from Mr Gatherer, who is also in court to show his support, in which he describes D1 as a trusted member of his team when he opened and operated Alvy’s, D1 having a strong work ethic, honesty and diligence with every task.  Mr Gatherer now works for a different restaurant group and wishes to bring D1 into his team as the business expands.  

Background report

14.  The background report largely focuses on the welfare of the young daughter, who was born in July 2020 and is therefore now aged about 16 months.  By the time of the birth of her daughter D1 had left her boyfriend, the father of the child, and has therefore singlehandedly taken care of her daughter.  The report details how D1 has attended to all the needs of her daughter[3].   

15.  The family describe how glad they were when D1 returned home in March 2020 after leaving her boyfriend.  The elder sister is of the view that D1 has achieved a positive change since returning home and has demonstrated herself to be a good mother[4].

16.  Having a history of drug taking D1 was referred to Grace and Joy Integrated Family Service Centre.  Ms Choi, the social worker, took up the case in August 2020 and reports that D1 is now drug free and provides good care for her daughter[5].  I have also read the letter from Grace and Joy Integrated Family Service Centre.

17.  Understandably D1 told the probation office that she is most concerned about her daughter and asks to be allowed to go home to take care of her and to continue breastfeeding[6].  This is also borne out in the defendant’s mitigation letter.

18.  Since D1 was remanded in custody the family have noticed signs of emotional disturbance in the daughter, who always cries and walks around the home looking for her mother[7]. Ms Choi reports that the daughter has become moody and throws tantrums and cries asking for “mama’ when she needs anything[8].

Burglary

19.  The correct starting point for a single burglary of commercial premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment.

20.  This is the starting point I adopted in passing sentence on D2, which I enhanced by 3 months to 2 years and 9 months’ imprisonment by reason of the aggravating factor that the commission of burglary was by three persons[9]. 

21.  In HKSAR v Sim Ka Wing the Court of Appeal stated that where an employee uses the knowledge acquired while working this warrants a further modest enhancement[10].  Although D1 was no longer an employee of Alvy’s she used her knowledge gained from working in Alvy’s and her acquaintance with Ms Gertos to return to Alvy’s to check the locker and see whether there was money to steal. 

22.  I am satisfied an enhancement of 6 months to 3 years’ imprisonment is appropriate for these aggravating features. 

Doing a series of acts tending and intended to pervert the course of public justice

23.  There are no guidelines as to sentence.  I regard the offence as serious asking someone to lie in an attempt to avoid being implicated in the burglary.  Ms Gertos was scared and not knowing what to do lied because she trusted D1.  This resulted in Ms Gertos being arrested for misleading the police and aiding and abetting burglary.

24.  I am satisfied a sentence of 18 months’ imprisonment is appropriate.

Individual justice

25.  The family request that D1 be given a suspended sentence or a chance to perform community service[11]. The probation officer also seeks a plea of mercy as a necessary protection of the well-being of the daughter[12].

26.  Miss Zahir submits that a suspended sentence is appropriate taking into account that D1 is a single mother with a young baby to look after.  Miss Zahir also asks the court to take into account the defendant has a clear record, a supportive family and the promise of employment. 

27.  Miss Zahir also asks the court to take into account that over two years have now passed since D1 was arrested. 

28.  Delay in bringing an offender to justice is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; where the delay has given the offender the opportunity to rehabilitate himself; whether restitution has been made; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[13].

29.  D1 first appeared in court on 4 December 2019.  The case was transferred to the District Court on 10 July 2020.  Having looked at the court record, the time taken to transfer the case to the District Court would appear to be because of the pandemic. After the first appearance in the District Court there were various adjournments for the defendants to obtain legal aid and legal advice.  On 10 February 2021 D1 indicated her pleas of not guilty and the trial was set down to commence on 23 August 2021.

30.  The matter having been hanging over D1 for just over two years during which time there appears to have been a positive change in D1 and that a sentence of imprisonment will deprive the daughter of the parental care of her mother, her only parent, I reduce the sentence on each charge by 9 months to 2 years and 3 months for charge 1 and 9 months for charge 2.

31.  In passing sentence I have carefully considered the need for individual justice, as articulated in the cases of HKSAR v Leung Pui Shan[14], HKSAR v Yeung Kwun Kuen[15]and HKSAR v Lam Ka Sin[16].  The appellant in Lam Ka Sin was also a single mother with a young child[17]. 

32.  I am satisfied that the circumstances in all three cases are very different.  The offences committed by D1 are very serious offences and unlike the cited cases there has been no plea of guilty and no sign of contrition.  

33.  Whilst accepting the imprisonment of D1 will deprive the daughter of her mother’s care and that the daughter will undoubtedly be emotionally disadvantaged by the absence of her mother, I am nevertheless satisfied the daughter will be well looked after by the grandparents and auntie with whom D1 has lived with since the birth of her daughter. 

34.  The family home is described in the background report as homely and comfortable. D1’s mother temporarily takes care of the daughter during the week and the family plan to hire a domestic helper.  D1 having already been referred to a social worker I am sure any necessary social services will be introduced to the family by Ms Choi[18].

35.  After careful consideration I find there are no exceptional circumstances to impose a non-custodial sentence.  Furthermore, by virtue of section 109B of the Criminal Procedure Ordinance a court cannot suspend a sentence of imprisonment for a term of more than 2 years[19]. I also note that Rule 21 of the Prison Rules provides for a female prisoner to apply for the child to remain with the prisoner until the mother has completed her sentence or the child has attained the age of 3 years[20]. 

Totality

36.  Although the offence of doing a series of acts tending and intended to pervert the course of public justice arises because of the commission of the burglary, this is a separate and distinct offence. Subject to totality of sentence I am satisfied a consecutive sentence is appropriate.

37.  I am satisfied a total sentence of 2 years and 6 months’ imprisonment properly reflects D1’s overall criminal culpability on the two charges and takes into account the seriousness of the offences and the personal circumstances of D1 including that she has a young child to take care of[21].  

Sentence

38.  The defendant is sentenced as follows:

Charge 1 – 2 years and 3 months’ imprisonment; and

Charge 2 – 9 months’ imprisonment with 3 months consecutive and 6 months concurrent to charge 1.

The total sentence to be served by D1 is 2 years and 6 months’ imprisonment.