HKSAR v. Santos Edward Francis

DCCC 456/2018

[2019] HKDC 259

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 456 OF 2018

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REASONS FOR SENTENCE

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1.In this hearing, the defendant, Santos Edward Francis, pleaded guilty to, and was convicted of two counts of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.Both burglaries were committed in business premises respectively. 

3.The first offence took place in the morning hours of 8 January 2018.  The defendant prised open the electronic roller shutter of a noodle shop situated in Sham Shui Po and stole therefrom cash of $9,700.  His action was captured by CCTV.

4.The second offence took place on 22 January 2018.  In the morning hours of that day, the defendant entered into a restaurant situated in To Kwa Wan Road by prising open its rear door with a crowbar and took therefrom an iPad and a safe containing $99,000. 

5.It appeared the offence had been committed with the assistance of other people: the police who was patrolling nearby observed a private car; and CCTV footages also revealed that the defendant and other people took the elevator carrying a black plastic bag containing something the size of the safe and loading the same onto the said private car.  The car left Ping Tin Estate.  Subsequently the same car was seen to be entering at about 5.54 am into a Wong Tai Sin carpark and the defendant and another person were seen leaving the car park together.

6.The defendant was arrested on 26 January 2018 in Tung Choi Street, where the defendant admitted under caution to the commission of the first offence.  He also admitted entered into the restaurant in To Kwa Wan Road together with other persons and stole therefrom.

7.These are burglary of non-domestic premises.  Both the prosecution and the defence have agreed, for offences of this kind, normally in the absence of aggravating factors, the starting point should be 2½ years.

8.In the present case, there are aggravating factors: the defendant had committed two offences within a short span of time.  In respect of the second offence, the defendant had committed the same together with other people, showing a certain degree of planning and premeditation.  It is not an opportunity crime: in which the culprit saw the place unguarded, the door left open and took advantage of the situation.

9.In both cases instructions were used.  It also showed a degree of premeditation to commit the crime.  From the crime record, the defendant is a repeat offender: the defendant had on 22 occasions been brought to court.  Although the earlier ones were mostly related to dangerous drugs, from 2007 onwards he was almost exclusively involved in offences of dishonesty.

10.I also note that in 2007, 2009 and 2012 and 2014, the defendant had been convicted of a total of four burglaries.  So it can be said that the defendant was a repeated offender.

11.I also note that for the burglary for which the defendant was convicted in 2014, the defendant had been sent to a term of imprisonment for 2 years and 1 month. Obviously, the previous sentence orders had failed to deter, so I am of the view that in the present case a higher starting point should be adopted to take into account of aggravating factors in the present case.

12.For the first offence (that is, Charge 1), I will adopt 3 years as a starting point.

13.For the second offence (that is, Charge 3), in view of the fact that it had been committed within a short time of the first offence and in view of the fact that a large amount of money was involved and also the fact that the defendant had committed the offence with premeditation and with the assistance of others and the use of a vehicle, I would adopt 3 years and 3 months as a starting point.

14.I turn to look at the mitigation put forward by the defence counsel. 

15.It does not seem that there was much to be said in his defence.  The defendant was aged 63.  He is of secondary school education.  He had been living on Social Welfare at the time of the offence.  He is married but separated from his wife.  He had no children.

16.As quite rightly pointed out by the defence counsel, that the defendant was in a desperate financial state was not a valid mitigating factor. 

17.The only valid mitigation is his plea of guilt.  Therefore, in accordance with the direction of the Court of Appeal, I would reduce the first count to 2 years to reflect this guilty plea and, for the third count, the 3 years and 3 months is therefore reduced to 26 months.

18.I then consider the totality principle.  Of course, they are two distinct offences that took place in different dates and the sentence orders should run consecutively. However, I take into account of the fact that both offences had been pleaded guilty to in one single set of proceedings.  I feel that it would be unduly harsh if I were to sentence the two orders to run consecutive. 

19.Having considered the whole of the case, I would therefore order 12 months of the third count to run consecutive to that of the first count.  Therefore, in all, the defendant is to serve a total term of imprisonment of 36 months.

20.I have also reconsidered the learned defence counsel’s mitigation and also the factors contained in the proof of evidence antecedent statement.  I do not find any other mitigating factor which might justify exercise of further leniency. 

21.Therefore, the defendant is sentenced to a total of 36 months’ imprisonment.