HKSAR v. Hoyos Cardona Robinson and Another

DCCC 631/2017

[2018] HKDC 239

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 631 OF 2017

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Reasons for Sentence

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1.The two defendants have pleaded guilty to a single charge of handling stolen goods. In summary, the goods concerned are the proceeds of four separate domestic-premises burglaries committed in Kowloon, the New Territories and Lantau Island from mid-March to mid-April 2017, the total value of the items taken being some $17,000-odd and the items being recovered from the two defendants from their persons and from their room that they were occupying in Chungking Mansions.

2.The two defendants are both residents of Colombia and were here on tourist visas, having arrived in March and being permitted to stay I think for some three months from that point. 

3.In more detail, the burglaries were committed on the following dates.  The first burglary referred to in the facts is on 21 April 2017 at a village house in Tseung Kwan O which had been secured and left, and when the residents returned, they found items, which are variously referred to as stolen properties 1, had been taken and they were valued at $5,500 in total.

4.The second burglary appears to have occurred on the evening or morning of 14 April 2017 which is at another village house in Tseung Kwan O in Kowloon.  Again the 1st floor area had been secured, and entry had been made into the premises, and items that are referred to as stolen property 2 which were valued at $5,000 were taken.

5.The third burglary referred to as incident 3 in the facts that occurred in March was on 18 March 2017.  Again a three-storey village house in Shatin had been left locked, had been entered, and various stolen properties described as stolen property 3 were taken and valued at $5,696 in total.  The CCTV cameras nearby appeared to capture some men loitering, and no identifications could be made from that.

6.The fourth incident referred to in the facts was on 24 March 2017 at a low-rise apartment in Discovery Bay, Lantau Island. The property had been left by the resident and was entered at some time between then and what must have been 6 April 2017.  A wrist watch referred to as stolen property 4 valued at $1,500 would seem to have been taken amongst other items.

7.Both defendants were arrested at Chungking Mansions on 26 April 2017.  They were searched and various items were found upon them, including a watch and a pair of “Ray-Ban” sunglasses which had been taken from the third property referred to. 

8.Following a search of the room that they occupied in Chungking Mansions, stolen properties 1 through to 4 except the items I referred to earlier were found inside there along with various rental receipts and various sums of cash.  The properties were later identified by their owners, and the defendants later made video-recorded interviews by which they admitted coming to Hong Kong and the 1st defendant saying he was a garment hawker and came as a visitor, and the 2nd defendant also saying this is his first time to Hong Kong and came as a visitor, and those constitute the facts.

9.As far as the defendants’ antecedents are concerned, they are both of clear record.  They are both aged 35 years old. 1st defendant, a high school graduate from Colombia, had worked in a water supplies department and was a garment merchant.  He is single.  And the 2nd defendant was unemployed in Colombia without education apparently and single with no, on the antecedents, no relatives.   

10.I deal with the approach to sentencing.  The general approach can normally be seen in the case of HKSAR v Xiao Wei which is Cr App 225 of 2003.  Now, that case in summaries involved a single watch which is the proceeds of a domestic-premises burglary.  The Court of Appeal took a starting point for the burglary alone of 18 months’ imprisonment for the handling of the goods that came from that burglary.  They also referred that an aggravating feature of the case could be that the defendant came to Hong Kong to commit crimes of dishonesty. 

11.The court in that case referred to the words of Roberts CJ in Chan Wing Kwan which is Cr App 121 of 1985 when he said that normal bracket of sentencing for handling stolen goods can run between 2 to 4 years.

“The handler of stolen goods can normally expect a lesser sentence than those who are convicted of the substantive offence of burglary of the goods which were subsequently handled.”

12.Also, reference was made to the case of Bernard Webbe which is an English case, [2002] 1 Cr App 22 which referred to some nine separate factors which the court should take into account in determining the appropriate starting point for sentence, for example, the closeness of the handler to the primary offence.  That can be geographical or temporal.

13.Here, the last offence was committed of the burglaries on the -- I think it is 21 April.  The arrest of the defendant was not till the 26th.  So there is some distance in time between the last of the burglaries and defendants’ possession of the properties.

14.Second, we look at the seriousness in the primary offence.  Seriousness arises out of the primary offence being domestic-premises burglaries.  Three of the properties appear to have been empty but one of them was partly occupied. 

15.The high value of the goods to the loser.  In this case, the total value of goods is some $17,000-odd which I do not believe can be categorised as high-value goods.  The facts were the goods were the proceeds of a domestic burglary which is the case here.

16.Sophistication in relation to handling.  It would appear that there is little sophistication in this case. 

17.Was the handler a regular outlet for stolen goods?  There are four burglaries now but again there is no evidence that necessarily shows that in this case. 

18.The eighth factor does not appear to be relevant as indeed does the ninth factor.

19.I have already iterated what I see to be the particular significant factors in this case that they are domestic-premises burglaries over a period of time.  There are four in number.  I also need the value of the goods.  The fact that the defendants are visitors to Hong Kong can be an aggravating factor.  The factor referred to in the case of Xiao Wei is that they came to Hong Kong to commit crimes of dishonesty which showed a disregard of the law.  I do not necessarily believe that that could be an aggravating factor in this case and that the defendants solely came here in order to commit offences of dishonesty.  I do not know if that can necessarily be inferred from their simple presence here and the fact that they received the proceeds of four separate individual burglaries.

20.Having taken all the factors into account, for these defendants, their culpability would appear to be similar.  So I take the same starting point for sentence of both of them.  I do bear in mind when determining that starting point for sentence they are both of clear record.  

21.What I will do is take a starting point for sentence of 30 months’ imprisonment for each defendant.  I reduce that to 20 months’ imprisonment for their plea of guilty, and so the sentence for each defendant will be one of 20 months’ imprisonment on this charge.