HKSAR v. Tupaz Adonis Jonathan Villarante

DCCC 22/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 22 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to two charges, the first charge being burglary, contrary to Section 11 of the Theft Ordinance, Cap 210, and the second charge of failing to surrender without reasonable cause, contrary to Section 9L of the Criminal Procedure Ordinance, Cap 221.

2.The facts are straightforward. 

3.On 27 November 2014 the defendant entered as a trespasser a non-domestic premise in Yuen Long.  He entered through a window during daylight hours.  The premises were used as a workshop, as seen from the photographs supplied by the police.  The defendant was found by the person in charge of the premises inside the main room.  When the defendant saw PW1, he apologised and ran away. 

4.PW1 chased the defendant and subdued him with the help of two passers-by not far from the premises.  The police were called and when the police arrived the defendant admitted the offence.  He had not stolen anything before he was caught red-handed.

5.The defendant was detained in custody until February 2015, when he was granted bail in the District Court.  He failed to attend the next court hearing in March, so a warrant of arrest was issued. Some three months later, that warrant was executed and the defendant arrested. His bail of $2,000 was estreated.

6.The defendant told the court that when he was released on bail after three months in custody, he found that his girlfriend and child he had treated as his own had left him.  His girlfriend had started a new relationship with the defendant’s best friend.  I have been told today that, as a result, the defendant became depressed, even suicidal, and did not bother to attend court.

7.The defendant’s plea of guilty today is his best mitigation.

8.The defendant is 30 years old and not a man with a clear record.  However, he does not have any similar convictions.  He was convicted of two drug offences in 2005, when he was put on probation.  Two years later, for a breach of that probation order, he was sentenced to a total of 7 months’ imprisonment.

9.Defendant is a Filipino national.  He came to Hong Kong when he was 18 years old to join his mother.  She had become a permanent resident through marriage.  When the defendant arrived in Hong Kong, he found himself employment.  However, he fell in with the wrong crowd, which led to the dangerous drugs offences in 2005.  After that, he has worked on and off. 

10.At the time of this offence, he was unemployed, yet he was having to support himself, his girlfriend and a young child.  These circumstances led to this offence.

11.Mr Marray has said all he can say on behalf of the defendant.  The correct or normal starting point for a single burglary of a non-domestic premise by a first-time offender where there are no aggravating or mitigating factors that exist is 2 years and 6 months.

12.Having heard mitigation and considered the facts, there are no aggravating or mitigating factors that exist here.

13.Defendant, please stand up.

14.After considering everything said on your behalf, as

well as the facts of the case:

(1) for Charge 1, I will take a starting point of 2 years and 6 months;

(2) for Charge 2, I will take a starting point of 3 months’ imprisonment.

15.You have pleaded guilty and are therefore entitled to a discount of one-third from the starting points.

16.After that discount is applied:

(1) for Charge 1, you are sentenced to 1 year and 8 months’ imprisonment;

(2) Charge 2, you are sentenced to 2 months’ imprisonment.

17.Taking into account the totality principle, I intend to order 1 month of Charge 2 to be served consecutively to Charge 1, and 1 month concurrently.

18.Therefore, the total sentence for both charges is one of 1 year and 9 months.

COURT: Do you understand that sentence?

DEFENDANT: Yes, I understand.