HKSAR v. Sy Manuel Jr Cama

DCCC 1033/2018

[2019] HKDC 686

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1033 OF 2018

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REASONS FOR SENTENCE

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1.The defendant was convicted on his own plea and agreement to the Summary of Facts to a charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

Facts

2.According to the Summary of Facts, PW1, the occupant of Flat G, 19th Floor, Yen Dack Building, No 103 Chun Yeung Street, North Point, Hong Kong (“the premises”) left his premises secured by a locked door to the premises and metal gate to the premises on 8 July 2018.

3.On 21 July 2018, 13 days later, a neighbour of PW1, ie PW2, found the locks of the premises’ door and gate prized open and report was made to the police.  Fingerprint marks at different locations were collected from the premises.

4.Later, PW1 returned and found that the television set valued at about $6,500 and cash of $2,000 and US$200 had gone missing.  The defendant was later arrested and the stolen properties could not be recovered.

5.Police certified that the right palm fingerprint of the defendant matched the mark found on the wooden white board placed on top of a cabinet inside the living room of the premises. 

6.The defendant had therefore entered the premises as a trespasser on a day unknown between 8 July 2018 and 21 July 2018 and had stolen the properties aforesaid.

Criminal record

7.At the time of offence, the defendant has two previous criminal records, one was a shoplifting theft.

Mitigation

8.The defendant is aged 34.  He is a Form 8 holder since 13 March 2018, ie about four months prior to the date of the offence. 

9.He has received education up to high school level.  He moved to Hong Kong in the year 1998 from Philippines as a dependent when he was around 15 years old. 

10.He is married with three children all in Philippines and he lived with his mother in Hong Kong.  His mother is a permanent Hong Kong resident living in a public housing estate.

11.It was said that by the defence counsel, Mr Surman, citing the case of HKSAR v Lau Pang [2004] 3 HKLRD 565, that 3 years is the proper starting point for a first offender of full age in a case of domestic burglary. 

12.It is submitted further that there is no aggravating feature as listed in the case of R v Brewster [1998] 1 CR APP R (S) 181.  He asked that the defendant be treated as a man of clear record and a man of good character in sentencing.  He said the fact that the defendant is a Form 8 holder should not be prejudiced against him.

13.The Court of Appeal observed in the case of HKSAR v Sandagdorj Altankhuyag & Another [2014] 1 HKC 206 that the commission of an offence by a foreign national who is a holder of a Form 8 recognizance could constitute an aggravating factor and could have a sentence enhanced.  It is because a foreign defendant, when committing a crime, he had abused the hospitality and liberty offered by the Hong Kong Government and his crime has affected Hong Kong’s reputation for order and security and gone to the very essence of Hong Kong’s integrity in the international community.

14.In this case, the defendant used to hold a Hong Kong ID card by reason of being a dependent of his mother. 

15.He was convicted of theft on 12 March 2018 and therefore on 13 March 2018, he was issued the Form 8 instead. 

16.It is very probable and he should be aware that the reason for losing his dependent status was probably because of his theft conviction.

17.Yet, whilst holding the Form 8 and when he was allowed free in the community, pending further immigration proceedings, he committed the present offence. 

18.In my view, this clearly constituted an aggravating factor for which his sentencing starting point is enhanced by 3 months.

19.This court accepts that there is no other aggravating feature in this case and therefore the sentencing starting point in the case is 3 years and 3 months. 

20.The court has also considered all mitigation advanced by the defence counsel, including that of the mitigation letter by the defendant himself.

21.The defendant has pleaded guilty at the first available opportunity and this is, in my view, the only and most valid mitigating factor in this case.  He is therefore entitled to a full one-third sentencing discount.

22.Accordingly, the defendant is sentenced to 2 years and 2 months’ imprisonment for this charge.