HKSAR v. Lombana Gomez Juan Pablo and Others

DCCC 210/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 210 OF 2016

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.On this indictment, the 4th defendant has pleaded guilty to Charges 1 and 2 which are both charges of burglary. The 1st, 2nd and 3rd defendants have respectively pleaded guilty to the 4th, 5th and 6th charges which are each charges of handling stolen goods. The 3rd charge originally against the 4th defendant remains on the court file.

2.The facts of these offences are as follows, and dealing with them chronologically, the first offence is the burglary offence committed by the 4th defendant on 5 June 2015, and that charge relates a three-storey independent house in Yuen Long in which the first prosecution witness resided.  She heard a noise coming from the ground floor of her premises in the early evening of 5 June 2015.  She saw two men carrying torches who fled from the ground floor of the premises.  The premises had been ransacked, and property valued at $56,222 had been stolen, and the details of those items are set out in the facts agreed by the defendant.

3.Insofar as the 1st defendant is concerned, a Burberry wallet was later recovered from the 1st defendant’s home that had been stolen from this burglary on 5 June 2015.  A bloodstain found on a paper bag inside the premises showed matches to the DNA of the 4th defendant.  And the 4th defendant admits in respect of that burglary that he had entered the premises as a trespasser and stolen property from therein.

4.As far as the 2nd charge is concerned, that occurred on 10 July 2015 when a premises in Tuen Mun was secured and left.  This is a three-storey village house with a concrete wall surrounding it.

5.On 12 July, it was found that the premises had been ransacked.  Various items valued at $9,877 had been taken.  Paint smears found on prise marks on the balcony door related to the 4th defendant as they were found on chisels that he was subsequently found in possession of. Also, a laptop computer and nail clippers taken for this burglary were also found on the 4th defendant.  And the 4th defendant agrees part of the facts of this case that he entered those premises and stole property from them.

6.Dealing with the other charges, they relate to the 1st, 2nd and 3rd defendants, and they each pleaded guilty to one charge of handling stolen goods (the 4th, 5th and 6th charges), and these charges represent the proceeds of domestic-premises burglaries that occurred between 5 June 2015 and 11 November 2015.  In relation to the 1st defendant, the whole period is relevant; in relation to the 2nd defendant, the period alleged is between 24 October 2015 and 11 November 2015; and again for the 3rd defendant, the whole period is relevant.

7.The charges represent the proceeds of domestic-premises burglaries that occurred between those dates.  Some of the items stolen in those burglaries were recovered from each of the defendants’ premises after their arrests in November 2015. 

8.The facts agreed show there were a total of 10 domestic-premises burglaries that occurred between 5 June 2015 and 11 November 2015.  The facts agreed by the defendants show that the 1st defendant possessed items from seven of those burglaries valued at around $14,900.  The 2nd defendant possessed items from two of the burglaries valued at around $7,000-odd, and the 3rd defendant possessed items from nine of the burglaries valued at just over $69,000.  In relation to that, I note the bulk of the value related to seven bottles of perfume and four Louis Vuitton handbags which alone totalled $49,000.  These are the values attributed to these items by the victims of the burglaries. 

9.Full details of those stolen goods can be found in the facts agreed by the defendants, but a brief summary is that in the first domestic-premises burglary on 5 June 2015, 1st defendant was found to have a wallet and receipt of wallet valued at $1,200 from that and watches valued at $1,300 whilst the 3rd defendant had a handbag valued at $8,000.  The burglary wallet, which is valued at $1,200, was the proceeds of the first burglary to which the 4th defendant pleaded guilty.

10.From the second domestic-premises burglary on 20 June 2015, 1st defendant received a mobile phone valued at $5,000 and the 3rd defendant a handbag valued at $100.  

11.From the third domestic-premises burglary on 23 July 2015, the 1st defendant had a digital camera valued at $2,000. 

12.From the fourth domestic-premises burglary on 2 September 2015, the 1st defendant had a watch valued at $300, and the 3rd defendant had three Louis Vuitton handbags valued at the sum of $20,100.

13.From the fifth domestic-premises burglary on 27 September 2015, the 1st defendant had a mobile phone valued at $1,999 and the 3rd defendant various items such as wallets, ornaments and games machines.

14.From the sixth domestic-premises burglary on 15 October 2015, the 3rd defendant had various items such as watches, necklaces and a wallet.

15.From the seventh domestic-premises burglary on 24 October 2015, the 1st defendant had a mobile phone valued at $1,780 and the 2nd defendant a wallet valued at $1,000.

16.From the eighth domestic-premises burglary on 28 October 2015, 3rd defendant had some sunglasses valued at $1,300.

17.From the ninth burglary on 31 October 2015, 1st defendant had a bowl which was for the value attributed to $3,000 and the 3rd defendant a watch and cosmetics.

18.Finally, from the tenth burglary on 7 November 2015, the 2nd defendant had seven bottles of perfume valued at $6,050 and the 3rd defendant seven bottles of perfume valued at over $30,000.

19.The antecedents of all defendants have been admitted.  The 1st, 2nd and 3rd defendants are all of clear record in Hong Kong.  The 4th defendant does have a previous record in Hong Kong.  In 2011, there were a total of two appearances in court.  Of relevance here is that on 29 March 2011, the defendant pleaded guilty to two offences of burglary.  On each charge, he was sentenced to 2 years’ imprisonment, and the overall total sentence would have been one of 30 months’ imprisonment.

20.Dealing with the points put forward in mitigation for the defendants, I note in respect of the 1st defendant that he has pleaded guilty to a single count of handling stolen goods.  The values attributed in mitigation are necessarily less than the values attributed by the victims to these items. 

21.His personal particulars are that he is 29 years of age, born in Colombia, educated to secondary-school level and has worked as a clothing merchant.  He came to Hong Kong, looking for clothing suppliers.  He has a common-law wife but she has been in Hong Kong since February 2016, looking with the defendant insofar as she can be.  They have a daughter aged 10, and his mother had a stroke in his bedroom. 

22.He says that as far as the goods are concerned, he encountered sellers of very cheap goods and turned a blind eye to the cost. He wished to take the items that were found in his possession back to Colombia with him.  He has indicated an early guilty plea.  He is remorseful and has a clear record.

23.In relation to this defendant as to other defendants, there is an allegation of mistreatment by the police, clearly not an item I can deal with today.  Also, the items had been clearly in the defendant’s possession for some time, and it seemed unlikely that he wished to resell the items. 

24.As far as the 2nd defendant is concerned, he again has pleaded guilty to a single count of handling stolen goods.  He is 43 years of age, again born in Colombia and a bus driver by occupation, has a common-law wife and two daughters in Colombia.  He came to Hong Kong on a tourist visa, again says he bought the items because they were cheap and wanted to take them back to Colombia with him.  He again has pleaded guilty at an early stage, is remorseful and has a clear record in Hong Kong.  He had only been in Hong Kong for one month when he was arrested.

25.As far as the 3rd defendant is concerned, she is 28 years of age, born in Indonesia.  She married at the age of 18 and has twin children that are cared for by her aunt and uncle.  She came to Hong Kong in September 2012 and was employed as a domestic helper until the termination of her contract in 2015.  She currently has applied for asylum as a Form 8 torture claimant.

26.In mitigation, she said the majority of items were gifts from male friends, and she had also purchased items that were cheap, and she was prepared to turn a blind eye to that situation.  In mitigation, she put forward her early guilty plea, her remorse and her clear record.

27.Finally, the 4th defendant.  I have already dealt with his criminal record.  He is a single man but has a cohabitee.  He arrived in Hong Kong in 2009 on a tourist visa, and he has made an application as a torture claimant and has stayed in Hong Kong since then.  

28.I am told in respect of mitigation that he is remorseful.  He also claims that he was maltreated on his arrest and has produced, like the other defendants who allege this, some medical evidence for the court.  I am told at the time he committed these offences, he had financial problems and needed money to resolve them.

29.Dealing with the sentences on these offences, I will deal with the 4th defendant first as he is the first on the indictment and represented the first two charges on the indictment.  As I noted, he has pleaded guilty to two offences of burglary.  These are both domestic-premises burglaries.  It is common ground that on conviction after trial, the guideline sentence for a person of clear record who commits a domestic-premises burglary is a starting point of 3 years’ imprisonment.  That starting point can be increased to represent various aggravating factors.  The extent to which that starting point can be increased is a discretionary matter for the court.

30.Dealing with the aggravating factors that exist in this case, clearly, the first and most obvious aggravating factor is that of the defendant’s previous conviction for burglary in 2011.  His commission of these two further burglaries represents a failure of deterrence in the sentences that were imposed on him in 2011.  That needs to be represented in the final starting point for sentence.

31.The second aggravating factor relates to the 1st charge only, and that is the facts agreed show that there appeared to be more than one person involved in the burglary in the 1st charge.  The presence of two men with torches appears to indicate that.  That is also an aggravating factor that more than one person was involved in the burglary. That of course only relates to the 1st charge to which the 4th defendant has pleaded guilty.

32.Having regard to these factors, the starting point for sentence in relation to the 1st charge must take into account both of those factors.  I will increase the starting point for sentence from one of 36 months’ imprisonment to one of 45 months’ imprisonment for that charge.  The defendant is entitled to a one-third deduction from that sentence for his plea of guilty which results in a final sentence on the 1st charge of 30 months’ imprisonment.

33.On the 2nd charge, the only aggravating factor is the defendant’s previous convictions for burglary.  The starting point for sentence on the 2nd charge will be 42 months’ imprisonment. That will be reduced to 28 months’ imprisonment for the defendant’s plea of guilty.

34.The charges occurred on different occasions and can be served consecutively as they represent separate identifiable criminal enterprises.  In determining the overall sentence, I must bear in mind the correct overall totality for the defendant’s criminality.  I consider that the appropriate final sentence will be one of 36 months’ imprisonment, and I will achieve that by ordering that 6 months of the 2nd charge run consecutively to the 1st charge and the balance concurrently.  The overall sentence for the 4th defendant on his two charges will be one of 36 months’ imprisonment.

35.Turning to the other defendants, 1st, 2nd and 3rd defendants who have each pleaded guilty to the one offence of handling stolen goods, I note that in the case of Crown v Chan Wing Kwan & Another, that is CACC 121/1985, the Court of Appeal said “examination of a number of other cases of handling stolen goods shows the normal bracket of sentences runs between 2 to 4 years’ imprisonment”, says “the handler can normally expect a lesser sentence than those who are convicted of the substantive offence of burglary of the goods which were subsequently handled”, and “a starting point of 3 years or above” seems “to be reserved for more serious offences”. 

36.In the case of HKSAR v Xiao Wei [2004] 1 HKC 520, that involved the case of the handling of a stolen watch where there was no evidence the defendant had any direct knowledge of the means by which the watch was stolen, and the value of the watch was not particularly high.  A starting point of 18 months’ imprisonment was applied.

37.Also of relevance is the case of Crown v Bernard Webbe & Others, an English Court of Appeal case where the Court of Appeal examined factors that would be aggravating factors which could increase the starting point for sentence in relation to a case of handling stolen goods.  There were nine factors identified.  Perhaps of some relevance here, one is the closeness of the handler to the primary offence.  They note that the closeness may be geographical or temporal where it said the handler instigated or encouraged the primary offence beforehand or provided a safe haven or route for disposal.  Factor 4 is the fact that the goods were proceeds of a domestic burglary.  That of course applies to all the defendants in this case.

38.Another factor that may be of relevance here is 7, the provision by the handler of a regular outlet for stolen goods, and the significance of that factor relates to the number of burglaries that the items found in the respective defendants’ possession related to.  Now, the defendants, perhaps with the exception of the 2nd defendant, have items that are the proceeds of a number of burglaries which show they may have been an outlet for those burglaries.  It would appear that at least those two aggravating factors are present in relation to certainly the 1st and 3rd defendants and to a lesser extent the 2nd defendant.

39.I must also bear in mind the defendants’ mitigation that they are all of clear record and their involvement involves different amounts of items of different face value. 

40.I did consider the first factor outlined by Webbe which is the closeness of the handler to the burglary.  It appears to me that the facts in this case do not allow the court to reach any definite conclusion on that.  There is or there was an item found in the 1st defendant’s possession that related to the first burglary on 5 June 2015, but it is clear that this defendant was not apprehended until November of 2015.  So the presence of the item in his possession is remote temporally and possibly geographically as well.

41.The aggravating factors that are present in relation to these burglaries, to these offences of handling stolen goods are the fact that they all proceed and result from a domestic-premises burglary and also that they related to a number of burglaries.  

42.Taking those factors into account, I consider the appropriate level of sentencing should be as follows for each defendant. In the 1st defendant’s case, the value of the goods is not small, and the number of burglaries is not either.  They relate to seven burglaries and a total of over $14,000.

43.Taking the starting point of 18 months for one item from one burglary as outlined in the case of Xiao Wei, I consider that that sentence should be enhanced in respect of the 1st defendant by a further 12 months to a starting point of 30 months’ imprisonment.  

44.The defendant of course has pleaded guilty, is entitled to a discount of 10 months’ imprisonment from that figure.  So on the 4th charge, the 1st defendant will be sentenced to 20 months’ imprisonment.

45.The 2nd defendant has items from only two burglaries at a much lower figure.  For him, I will take a starting point at 21 months’ imprisonment.  I shall reduce that to 14 months’ imprisonment for his plea of guilty.  So the sentence on the 5th charge for the 2nd defendant will be one of 14 months’ imprisonment.

46.As far as the 3rd defendant is concerned, she has items from the most burglaries at the highest value.  I shall take a starting point for her of 33 months’ imprisonment.  I shall reduce that to 22 months’ imprisonment for her plea of guilty. 

47.Those will be the sentences in relation to these matters.