HKSAR v. Hincapie Alzate Gilberto and Another

DCCC 929/2017

[2018] HKDC 517

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 929 OF 2017

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REASONS FOR SENTENCE

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1.D1 was convicted upon his own plea of one charge of handling stolen goods, contrary to section 24 of the Theft Ordinance, Chapter 210 (Charge 1).  D2 was similarly convicted upon his own plea of one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210 (Charge 2).  And upon the convictions of the defendants as aforesaid, the prosecution applied and I permitted Charges 3 and 4, both being going equipped for stealing, be left on court file.

The admitted facts

2.There were two cases of burglary in this case. 

Case 1

3.Lai Chung Lam (PW1) and his wife left their village house at 1240 hours on 26 May 2017 with all windows and doors secured.  When they returned and entered the master bedroom of their house at 2215 hours, they found a lot of things originally kept in a black Agnès B travel bag on the bed and that the window of the bedroom was prised open.

4.The said Agnès B travel bag, 30 watches, cash 30 sterling pounds and one iPhone 6 Plus mobile phone in gold colour valued at HK$7,000 (hereinafter referred to as “the gold iPhone”) were found missing.

Case 2

5.Robertson Lorla Margaret (PW2) lived on the 1^st floor of No. 144 Tai Peng Village, a three-storey village house in Lamma Island by herself.  She left her home at 1130 hours on 31 May 2017 with all doors and windows secured.  When PW2 returned home at 1010 hours on 1 June 2017, the iron gate was shut, the wooden main door was locked, and there was no sign of ransacking.  However, the bedroom window was prised open.  PW2 checked and found most of her valuable jewellery missing, including 15 pairs of earrings, 6 rings, 7 chains, 3 pendants, one bangle, one pair of ear clips, one chain with charm, one necklace, two chains (each with pendant) and 3 bracelets.  The total value of the stolen property is HK$84,174. 

6.The case was reported to the police.  The police found one surgical mask on the floor near the rear side of the bed next to the window which had been prised.  The DNA on the stain on the green side of the mask was found to match with that of D2.

7.In addition, DNA was also found on the white side and ear-loop surfaces of the mask.  The DNA is a mixture from at least two DNA sources, and D2 could not be excluded as a possible contributor.

8.CCTV footages showed that at 1832 hours on 31 May 2017, D2 entered the ferry gate in Central Ferry Pier to Lamma Island.  At 2104 hours on the same day, D2 left Lamma Island and entered the pier with a black bag. 

9.At about 1818 hours on 28 June 2017, police officers spotted D1 and D2 enter Central Ferry Pier No. 4 and then arrested them.  At the time of D1’s arrest, he was in possession of some cash, several items, including the said gold iPhone, being the stolen property in Case 1, and a silver mobile phone.

10.Under caution in a video-recorded interview, D1 said, among other things, that both the gold iPhone and the silver phone belonged to him, and he refused to disclose the PIN numbers for them.

The defendants’ background

11.D1 is aged 34.  He was born and received middle-school education in Colombia.  He is single and lives with his elder sisters in Hong Kong.  He was a mechanic but was unemployed at the time of his arrest.  I was told by the prosecution that he came to Hong Kong in 2011 and has become a Form 8 recognizance holder since 2016, but the relevant torture claim was withdrawn on 25 January 2017.  That was before the date of the current offence.  He has one previous conviction, namely, a shoplifting for which he was sentenced to 4 weeks’ imprisonment on 2 November 2016.

12.D2 is aged 37.  He was also born and received middle-school education in Colombia.  He used to be a hawker and was unemployed at the time of his arrest.  He lived with his parents, girlfriend and four children in Hong Kong.  I was told by the prosecution that D2 came to Hong Kong in 2015 and has become a Form 8 recognizance holder since January 2017.  To be specific, that was 17 January 2017.  The relevant application was withdrawn on 7 June 2017.  That was after the commission of the current offence.  He has one previous conviction of handling stolen goods for which he was sentenced to 12 months’ imprisonment on 9 August 2016.

Mitigation by D1

13.For D1, the antecedents and the criminal records were not challenged by Mr Tracy who appeared on his behalf.  It was submitted that he has two daughters aged 17 and 9 respectively, both residing with their grandmother in Colombia.  It was submitted that he came to Hong Kong because of a number of civil wars in Colombia, and as a result, he fled Colombia and came to Hong Kong as an asylum seeker back in year 2011.

14.With respect to the circumstances under which he came into possession of the stolen phone in question, it was submitted that when he was in Lamma Island, the specific date which he could not recall and could possibly be in late May or early June, someone offered the stolen phone to him for HK$2,000.  In view of the ridiculously low price and also the fact that the relevant data of the phone had been erased, D1 believed that it was a stolen phone but he nevertheless purchased it for self use.

15.Mr Tracy submitted altogether 4 cases for the court’s consideration. The first one is HKSAR v Cheng Chi Wai [2012] 4 HKC 590.  It is a case of handling stolen goods where the 9 aggravating factors mentioned in an English authority, Bernard Webbe, had been discussed.  It is submitted that those aggravating factors are not applicable in the present case.

16.The second case is HKSAR v Tumurbaatar HCMA 309/2010 reported as [2010] 4 HKC 211.  Again it is also a handling stolen goods case.  The appellant handled a mobile phone which was a stolen property in a theft case, and the learned judge of the Court of First Instance approved the starting point of 12 months’ imprisonment.

17.The third case is HKSAR v Wong Ming Po (黃明寶) CACC 197 /2016.  The Court of Appeal took the view that the appellant in that case was in possession of a stolen T-shirt taken from a burglary in a boutique and that the starting point of 12 months originally imposed by the sentencing judge was manifestly excessive.  The Court of Appeal substituted it by 6 months’ imprisonment.

18.Lastly, HKSAR v Raman Kumar CACC 324/2017.  The applicant in that case pleaded guilty to a charge of domestic burglary and a charge of handling stolen goods involving a smartphone. The sentencing judge adopted starting points of 3 years and 1 year respectively for the two charges and enhanced the starting point of each charge by 3 months to reflect the aggravating factor, namely, the applicant was a Form 8 recognizance holder at the time of the commission of the offences. 

19.The Vice President Lunn J, when deciding on the leave application, referred to an earlier Court of Appeal judgment, i.e. HKSAR v Sandagdorj & Another [2014] HKC 206.  The Vice President took the view that there is no question that the burglary committed by the applicant is such an offence and that the fact that he was a Form 8 recognizance holder at the time of the commission of the offence warrant an enhancement of sentence.

20.The Vice President, however, expressed that having regard to the particular circumstances of the commission of the offence of handling stolen goods, it is reasonably arguable that the sentencing judge erred in enhancing the starting point for sentence of 12 months by 3 months’ imprisonment.

21.Since it is the prosecution’s position not to apply for enhancement in this regard of D1, Mr Tracy did not see the necessity to address the court any further on that issue.

22.In relation to the extent for the guilty plea tendered by D1, Mr Tracy submitted that Ngo Van Nam [2016] 5 HKLRD 1 does not specifically cover the current situation.  It was submitted that, strictly speaking, this is the first opportunity D1 tendered his guilty plea, and he should be entitled to the full one-third discount.  Even if this is not the case, it is submitted that a modest reduction, perhaps 3%, should be made from the full discount for the guilty plea.

Mitigation by D2

23.Mr Kelly rightly and fairly accepts that the starting point for 3 years for domestic burglary is applicable in the current case.  He also does not seek to argue with the enhancement of 3 months to reflect D2’s  Form 8 holder’s status as approved in the case of Raman Kumar.  It is submitted that D2 came to Hong Kong because of the conditions in his country, and it was his intention to go to mainland China to source goods for trading or resale in South America.  It is also submitted that D2 was merely an opportunistic burglar acting on his own in an unattended premises where no violence or threat had been used.  The value of stolen property was not extremely high, and the court was urged to adopt the conventional starting point of 3 years’ imprisonment.

Sentence of D1

24.I first deal with the sentence of D1.  Unlike burglary offences, there are no specific sentencing guidelines for offence of handling stolen goods. The reason is that the circumstances under which a ‘handling’ offence is committed can vary so much that it is inappropriate to set down any sentencing guidelines, see HKSAR v Yau Pak Chun CACC 211/ 2006. 

25.Apart from the authority Cheng Chi Wai submitted by counsel for D1, it was also discussed in HKSAR v Xiao Wei CACC 225/2003 submitted by the prosecution the 9 aggravating factors suggested by the English authority Bernard Webbe for ‘handling’ offences.  The Court of Appeal in Xiao Wei took the view that the starting point of 18 months’ imprisonment was appropriate for that case where the applicant pawned a stolen watch valued at HK$11,200 just 6 hours after the relevant domestic burglary.

26.Having considered the authorities submitted by counsel for D1 as well as the said authority Xiao Wei, I am of the view that the appropriate starting point for ‘handling’ offence in this case should be 12 months’ imprisonment.  In view of the prosecution’s stance, I do not need to consider any enhancement of the sentence of D1 in relation to his Form 8 holder status. What remains to be considered is the extent of discount for his guilty plea.

27.According to the record, the first mention date in the District Court was on 7 November 2017 when both defendants were represented by representatives of the Legal Aid Department.  The second and the last mention date took place on 4 January 2018.  On that occasion, D1 and D2 were represented by Mr Tracy and Mr Kelly respectively on the instructions of the Director of Legal Aid.  On that occasion, D1 indicated not guilty plea whereas D2 indicated guilty plea to the charges, and as a result, the case was set down for trial of 3 days.

28.I was informed by the prosecution that a so-called plea-bargain proposal was made by D1 on 18 January 2018, which proposal was accepted by the prosecution on 7 February 2018, and finally confirmed by D1 on 26 March 2018.

29.On this issue, apart from the sentencing principles in Ngo Van Nam, I have also considered a more recent authority in HKSAR v Barrow Lamin CACC 219/2017.  The judgment was handed down on 29 November 2017.  It was a leave application decided by Macrae JA.  In that case, the applicant originally faced two charges of trafficking (Charges 1 and 3).  He indicated not guilty to both charges at plea day, and as a result, trial was set down.  On the morning of the second day of the trial, the applicant made an offer to plead guilty to Charge 3, which offer had been accepted by the prosecution.  As a result, on the same day, he pleaded guilty to Charge 3, and Charge 1 was left on court file.

30.Defence counsel in that case submitted to the court that Ngo Van Nam was concerned with the entering of a late plea where there was no change in the prosecution’s position as to the acceptance of pleas.  There, the position was different because the prosecution has agreed, after the first day of the trial had concluded, to accept a plea to one charge rather than both.  It is, therefore, submitted that the judge should have a discretion to afford the applicant the full one-third discount for his plea of guilty.

31.The sentencing judge said that the applicant should have made the offer to plead guilty to one charge in exchange for the prosecution not proceeding with the other a lot earlier than the first day of the trial.  This was approved by Macrae JA at the leave application when Macrae JA expressed at paragraph 17 of the judgment that the sentencing judge “was faithfully following, as he was required to do, the directions handed down by the Court of Appeal”, referring to Ngo Van Nam, “as to the appropriate discounts at various stages of the criminal trial process in the District Court”. 

“... the first time there was any indication of a possible plea of guilty was after the court adjourned on the first day of a trial fixed for 7 days, and the first the court came to know about it was on the second day of trial. Accordingly, the judge was correct that the appropriate discount for his late plea was, in accordance with Ngo Van Nam, 20%.”

32.Going back to the present case, I am of the view that we have a similar situation here.  I fail to see why D1 could not have proposed the plea bargain earlier as D2 indicated his guilty plea at the last mention date or in any event prior to the fixing of the trial dates.  Now, a trial of 3 days has to be aborted, and D1 should be responsible for that as he failed to indicate a timely plea as described in Ngo Van Nam.

33.It would be a different scenario if it is the prosecution who propose a plea bargain subsequent to the fixing of the trial date and the defendant pleads guilty at the first available opportunity even if it is on the first day of the trial.  As D1 here indicated his guilty plea to the prosecution after the fixing of the trial dates and before the first day of the trial, the proper discount according to Ngo Van Nam should be in the region of 20% to 25%.

34.I am prepared to afford him a 25% discount which is the most generous discount possible in the circumstances of this case.  As said, I adopt a starting point of 12 months and reduce it by 25% to represent his guilty plea.

35.I sentence D1 to 9 months’ imprisonment for Charge 1.

Sentence of D2

36.Now I deal with D2.  There are clear guidelines for domestic burglary: a usual starting point of 3 years’ imprisonment, see AG v Lui Kam Chi [1993] 1 HKC 215.  I do not see any circumstances of D2 or the case which warrant any upward or downward adjustment.  I, therefore, adopt what is described as the conventional starting point of 3 years’ imprisonment, enhance it by 3 months to reflect the aggravating factor, namely, D2’s status as a Form 8 holder at the time of commission of the offence as approved in the said case of Raman Kumar.  That brings it to 39 months’ imprisonment.  I reduce it by one-third to reflect his timely plea. 

37.I sentence D2 to 26 months’ imprisonment for Charge 2.