HKSAR v. Ramirez Morris John F

DCCC 315 & 565/2019 (Consolidated)

[2019] HKDC 1439

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 315 & 565 OF 2019

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 3 charges of burglary.

SUMMARY OF FACTS

Luen Tak Building (residential and commercial)

Charge 1: 04:37am, 6 February 2019

2.At around 08:45 am on 6 February 2019, the security guard, a Mr Chu, of Luen Tak building situated at Nos 180-188A Des Voeux Road West in Sai Ying Pun found that the padlock of one of the three drawers of a desk inside the guard station had been pried open.  The $3,000 cash that was inside had gone missing.

3.Mr Chu had previously checked that the drawer was closed and the padlock secured before leaving the guard station at around 10 pm the night before.

4.Mr Chu also locked the metal gate of the front entrance at around 5:30 pm.  He stayed overnight on the 3^rd floor of the building.

5.The closed circuit television system captured the defendant opening the metal gate of the front entrance and entering the building at around 04:37 am earlier that day.  The defendant moved one of the cameras and pointed it in another direction.  The defendant left the building via the front entrance at around 05:11 am.

6.The defendant was arrested 7 days later on 13 February at around 1:20 pm.  Under caution, the defendant said that he had spent the money that he had taken.

7.In the video recorded interview conducted later on the same day, the defendant claimed that he walked past the building that day and saw the metal gate was slightly open.  Out of greed, he entered the gate and then the building.  He saw an unlocked drawer inside, searched through it and found about $3,000.  Out of fear, he used a broom to move one of the cameras so that he would not be caught stealing.  He took all the cash and left the building.  He also claimed that he had sent all the money to his family in the Philippines.

Charge 2: 02:54am, 12 February 2019

8.At around 04:10 am on 12 February 2019, while the same security guard was on patrol in the building, he found that one of the closed circuit television cameras had been blocked, the padlock on the same drawer was again pried open and there were signs of ransacking inside the guard station, although nothing of value was found to be missing.

9.CCTV footages captured the defendant entering the building at around 02:54 am earlier the same day and then using some tape to block the view of one of the cameras.  The defendant left the building via the front entrance at 03:05 am.

10.In the above mentioned video recorded interview, the defendant claimed that he went there to see if he could steal.  He saw the metal gate slightly open and so he entered the building.  He went to the management office and covered the camera with an adhesive tape.  He then searched through the drawers but found nothing to steal.  So he left and went home.

11.Just as with Charge 1, Mr Chu would lock the metal gate to the front entrance after 5:30 pm.

Wing Wah Mansion (residential)

Charge 3: 03:28am, 26 April 2019

12.At around 7 pm on 25 April 2019, when security guard of Wing Wah Mansion situated at 425Y Queen’s Road West in Sai Wan went off duty, he checked that the security guard station was locked and that the padlock on the drawer containing management documents was secured.

13.He returned to work at 08:00 am the next day to find the said padlock damaged and the drawer pried open.  Nothing of value was missing, but the matter was reported to the police anyway.

14.CCTV footages captured the defendant appearing at the ground floor of the building at 03:28 am on 26 April, and leaving the building via the front entrance about 4 minutes later at 03:32 am.

15.In a different video recorded interview taken on 26 April 2019, the defendant claimed under caution that he used to live in Wing Wah Mansion and so he knew the password for the front entrance of the building.  He claimed that the guard station was unlocked and that the padlock of the drawer already damaged and the drawer unsecured.  He opened the drawer and found a pile of documents inside.  He left the guard station about 5 minutes later without taking anything.

PREVIOUS CONVICTIONS

16.The defendant has two previous convictions, both relating to dishonesty. The first one was in January 2016 for handling stolen goods when he was sentenced to 16 months’ imprisonment in the District Court.

17.His second and last conviction was dated 24 January 2019 for shoplifting, when he was fined $4,000 in the Eastern Magistracy.

18.The defendant committed the first burglary just 13 days after his latest conviction.  This is an aggravating factor, which will be reflected in the eventual sentence.

BACKGROUND AND MITIGATON

19.The defendant was born in the Philippines and is 37 years old.  He was educated up to Form Five level in Hong Kong.  He was working as a part-time waiter in a club in Lan Kwai Fong prior to his present arrest.

20.The defendant’s 16 year old daughter from his previous marriage and his present cohabitee wrote in mitigation.  In gist, his daughter wants to spend more time with her father while the cohabitee wants the defendant back to help her look after her 3 children.  According to her letter, her eldest daughter is residing with her mother while her 2-year old son is under child care supervision at Po Leung Kuk and is suspected of having problem speaking.  The youngest, a 3-month old daughter, is also under child care supervision with Mother’s Choice.

SENTENCE

21.It is trite law that the respective sentencing starting point for burglary of domestic and non-domestic premises is 3 years and 2 and a half years’ imprisonment[1] for a first offender.

22.The defendant was not an opportunistic burglar.  According to the summary of facts, the front gates to all two buildings were locked and the padlocks of all the drawers were secured when the defendant gained entry and pried the drawers open, despite what the defendant claimed in his interviews with the police.

23.I was told in mitigation that the defendant was able to gain entry to the front gates because he used to be a resident of the two buildings and knew the passcode to the locks.  He claimed that he had chosen the buildings because he had had happy times there.

24.I find that the truth must be that the defendant had chosen to burgle the buildings he had lived in because he knew he would be able to gain entry easily using the passcodes.  He must also have been familiar with the layout of the building and knew where valuable items might be kept in the security stations.

25.Although only $3,000 was stolen in the first burglary, and nothing of value was stolen in the second and third burglary, these are not reasons to depart from the guideline starting points.

26.Having said that, I find that although both buildings in the charges are residential in nature, or had a residential section, the security guard stations that the defendant had chosen to burgle can be visited with a lower starting point.

27.The reason burglary of domestic premises attract a higher starting point is explained in the case of HKSAR v Ng Wai Hing, CACC 621/2002:-

“28. Burglary is a serious offence and burglary of domestic premises is even more serious as there is always the possibility of confrontation with the occupant who will be subject to extreme fright when a total stranger invades his privacy. The gravamen in burglary of domestic premises is the fear felt by victims that a thief should have invaded their own house. That is why it may be regarded as an aggravating factor in burglary of premises which are expected to be occupied.”

28.In the present case, there was no risk of any such confrontation with the occupants in their own home.  There was no direct invasion of privacy by the defendant.  I find that it would be fair to treat the burglaries as being of non-domestic premises.

29.The court was told that the defendant might have committed the burglary in charge 3 because of domestic discord, and that he might have suffered a neurotic episode when he entered the building and the guard station and then looked through the drawer.  Mr Haynes confirmed that he is not suggesting that the defendant was suffering from psychiatric illness at the time of the commission of the offences or at the time of being sentenced. 

30.I find that the fact that the defendant somehow managed to be calm enough to enter the passcode to enter the front gates, went to the guard stations and had the presence of mind to turn the CCTV cameras away, and then pried open the locked drawer to see if there was anything to steal not indicative of someone suffering from a near emotional breakdown.

31.Furthermore, even if the discord with his cohabitee contributing to his committing the offence in charge 3 was true, it is trite law that a defendant’s personal circumstances cannot usually amount to a mitigating factor.  I do not find the defendant’s circumstances warrant a discount from the guideline sentence.

32.I will, therefore, adopt a starting point of 30 months’ imprisonment for each of the 3 burglaries.

AGGRAVATING FACTORS

33.The defendant committed the first burglary just 13 days after his latest conviction for shoplifting.  This is one of the aggravating factors mentioned above.

34.Another aggravating factor is that the defendant committed the charge 3 burglary (Wing Wah Mansion) whilst he was on court bail for the two burglaries that he had been arrested for on 13 February 2019, with theft as the holding charges. 

35.For the first aggravating factor, I will enhance the defendant’s sentence in relation to charge 1 by 1 month.  The enhanced sentence would then be 31 months’ imprisonment.

36.For the second aggravating factor, I will enhance the sentence of charge 3 by 3 months. The enhanced sentence would then be 33 months’ imprisonment.

DISCOUNT

37.The defendant had entered timely pleas of guilty and is entitled to the full one-third discount.  The discounted sentences of charges 1 to 3 are 20.7 months, 20 months and 22 months’ imprisonment respectively.

TOTALITY

38.The burglaries are of a small scale.  Only $3,000 was stolen in charge 1.  There is no suggestion that the defendant was a professional burglar.

39.The burglaries in charges 1 and 2 were committed just 6 days apart.  The loss or damage suffered was not significant.  I find that the sentences in charge 1 and 2 should be served concurrently.

40.The defendant committed the third burglary whilst on court bail for the first two.  Taking a step back, I find that 9.3 months of the sentence for charge 3 should be served consecutively to the sentences in charge 1 and 2, the balance concurrently.

41.The final total sentence for the 3 charges is, therefore, 30 months after plea.