HKSAR v. DOSQUE GUZMAN ALEXIS ANTONIO AND ANOTHER

DCCC 442/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 442 OF 2014

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Reasons for Sentence

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1.  The 1st defendant has pleaded guilty to Charge 1, a theft charge, contrary to section 9 of the Theft Ordinance, Cap 210, and Charge 3, for which he is jointly charged with the 2nd defendant, an attempted-burglary offence, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200.

2.  The facts for Charge 1 are as follows.  The defendant arrived in Hong Kong from Chile on 12 February 2014.  On 25 February, he entered a shop on Des Voeux Road whereupon he stole a bag belonging to a staff member of that shop.  This staff member, the victim, had placed his bag when he started work in the cashier’s area.  In the bag, he had his phone, credit cards and other personal items.  The value of his loss was $4,000.  At about 6.45 pm, he discovered his bag missing.

3.  There is CCTV recording in this shop, and the 1st defendant can be seen taking the shoulder bag away.  Under caution, the 1st defendant admits taking it because it was left unattended.

4.  The facts for Charge 3, where the 1st and 2nd defendants are jointly charged, are as follows.  The 2nd defendant arrived after the 1st defendant, entering Hong Kong on 6 March 2014. 

5.  On 8 March, police officers on anti‑crime patrol saw the 1st and 2nd defendants acting suspiciously outside No. 288 Des Voeux Road, Central.  They kept both defendants under observation for over half an hour.

6.  At about 12.25, the victim of Charge 3 left his shop which is No. 285 Des Voeux Road.  He locked the doors but did not lower the rolling gate of the shop.  This shop was a money exchange shop.

7.  Within five minutes of him leaving, the 1st defendant wearing a mask and the 2nd defendant wearing a cap tried to break into the shop.  The 2nd defendant acted as a lookout and a shield.  What he did was stand in front of the 1st defendant who was at the door and opened up a map to try to obscure anyone’s view of the 1st defendant.  Despite this, the 1st defendant was seen rattling the door and the handle.  He was unsuccessful and unable to open the door.  Both left the shop door area.  However, they came back within minutes and repeated the same actions, the 2nd defendant shielding the 1st defendant with an open map as the 1st defendant tried to open the door with a tool. Again they were unsuccessful and left the shop.  The police, whose suspicions were confirmed, arrested both defendants.

8.  The 1st defendant had on his person many items but in particular a screwdriver, a chisel, a black wig, two pairs of glasses without lenses, two masks, a torch, a mobile phone and many foreign currencies.  The 2nd defendant had on him a map, two masks, two mobile phones and foreign currency.

9.  Other than the police observation, the CCTV camera of the shop captured the 1st and the 2nd defendants’ actions.  Clearly, this 3rd charge is a joint enterprise.  Each defendant is as culpable as the other.  

10.  I have been told that the 1st defendant does not have a clear record in Hong Kong.  He was convicted of shop theft on 17 February this year and fined $2,000.  He had only arrived on 12 February.  So within two to three days of arrival, he was arrested for an offence involving dishonesty.  Within eight days of that conviction, he committed Charge 1.  Within two and a half weeks of that conviction, he was arrested for attempted burglary, Charge 3.  It would seem he may have come here to commit offences of dishonesty.  He says otherwise and that he had come to look for a job.  He says he ran out of money and so committed the offences. 

11.  I find it hard to believe he would come all the way from Chile, thinking he would get employment immediately, and when that was not possible, he ran out of money in a matter of days.

12.  By way of background, the 1st defendant is 40 years old and the 2nd defendant 61.  Both are from Chile.  I have heard that both have families at home, and the 1st defendant was a mechanic whereas the 2nd defendant was a carpenter.  Their best mitigation is their pleas of guilty.  I have considered all the mitigation put forward as well as the two authorities I have been referred to.

13.  For Charge 1, the facts of the case are akin to a pickpocketing offence, and a pickpocketing offence would attract a starting point of between 12 to 15 months’ imprisonment for a first offender. I do not believe that the offence was one of an opportunity that presented itself.  The victim put his bag in the cashier area which would have been out of bounds to anyone not a staff member and obviously not left unattended.  I will take into account that the 1st defendant’s mitigation extends to him agreeing to compensate the victim.  There will be restitution in this case, and I will bear that in mind.  Having considered those factors, for Charge 1, I will take a starting point of 12 months’ imprisonment. 

14.  For Charge 3, as pointed out by defence counsel, the normal starting point for a burglary of a non-domestic premise would be 2 years and 6 months.  There is no reason to depart from that starting point here.  From the facts, I find that the defendants went prepared to attempt to burgle and had a plan.  I also find there is no reason to treat the 1st and 2nd defendants differently.  As I have said, I find them equally culpable.  For Charge 3, I will take a starting point of 2 years and 6 months for both defendants.

15.  Please stand up, Defendants.  Because you have both pleaded guilty, you are entitled to a discount of one-third.  After I made that discount for the 1st defendant, Charge 1, you are sentenced to 8 months’ imprisonment.  For Charge 3, you are sentenced to 1 year and 8 months’ imprisonment.  

16.  I take into account the totality principle.  For the 8 months of Charge 1, 4 months will be consecutive to Charge 3 and 4 months concurrent.  That would mean accordingly a total sentence of 2 years’ imprisonment.

17.  For the 2nd defendant, he faces a sole Charge 3.  After a discount for your plea, you are sentenced to 1 year and 8 months.  Do you understand those sentences? 

1ST DEFENDANT: Yes.

2ND DEFENDANT: I don’t understand.

18.  Well, Charge 1, the 1st defendant is sentenced to 8 months’ imprisonment; Charge 3, 1 year and 8 months.  So...

2ND DEFENDANT: And total?

19.  Total: of the 8 months, half, 4 months, will be consecutive to Charge 3 and 4 months concurrent.  That would mean 4 months will be added to the 1 year 8 months, making 2 years.  Do you understand that?  2 years. 

20.  I also intend to make a compensation order as 1st defendant has mitigated on that basis.  I will make a compensation order to PW1.

(Discussion re compensation order)

21.  HK$1,750 as well as US$300 will be the compensation order to PW1.

(Discussion re compensation order)

22.  So I will make it payable through the police.