HKSAR v. Romero Gallegos Lucas Alejandro and Another

DCCC 619/2019

[2020] HKDC 172

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 619 OF 2019

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REASONS FOR SENTENCE

Both D1 and D2 pleaded guilty to a joint charge of "Burglary".

Summary of Facts

2.D1 entered Hong Kong as a visitor on 30 January 2019; whereas D2, on 16 February 2019.  They both came from Chile.

3.Mr. Nagahara (PW1) resides at a single house situated at No.31 Barker Road, the Peak ("the House").  About 8:30 p.m. on 17 February 2019, PW1's maids returned to the House and found the lights on the 2^nd Floor having been turned on. PW1 came home around 9:00 p.m. and found the doors of his bedroom and 2 living rooms broken with signs of ransacking.

4.PW1 found the properties particularized in the Charge missing.  They included 9 watches, 2 watch fragments, 3 necklaces, 2 gold plates, 10 gold coins, 1 wrist chain, 10 brooches with various types of precious stones, 1 ring, 1 Bellagio Collection suitcase, about RMB800,000 in cash, about US$50,000 in cash, about 10,000,000 Japanese Yen in cash, about 2,000,000 New Taiwan currency in cash, about 2,680 Pound Sterling in cash and cash in other foreign currencies (Euro, Malaysian Ringgit, Filipino Peso and Thai Baht).

Arrest of D1

5.About 12:35 p.m. on 27 February 2019, police officers intercepted D1 at the junction between King's Road and Oil Street.  D1 tried to flee but was subdued by the officers.

6.Significant sums of cash in Japanese Yen, Euro, Hong Kong Dollar, New Taiwan Dollar, Australian Dollar, US Dollar and in currencies of 14 other countries was found on D1.  Numerous items which belonged to PW1 including a gold plate bearing his name (E1), gold coins (E2 to E4), a gold wrist chain (E5), a gold necklace with a gold coin (E6), a brooch (E7), another gold plate (E8), 2 watch fragments (E9) and some Pound Sterling banknotes (E10) were also found on D1.

Arrest of D2

7.About 12:35 p.m. on 27 February 2019, D2 was intercepted by a police officer near Exit B of Fortress Hill MTR Station.

8.Cash in Hong Kong Dollar, US Dollar and Euro in no small amount was found on D2.  A gold necklace with a gold coin bearing someone's name (E11) and a gold ring bearing PW1's name at birth (E12) were also found on D2.

Evidence against D1 and D2

9.PW1 was able to identify E1 to E9 and E11 to E12 as properties belonging to him and his wife which were stolen from the House.  Regarding E10, the total sum and status (some being out of circulation old version notes) of the banknotes are consistent with the cash in Pound Sterling stolen from the House.

10.Transaction records of the respective Octopus cards found on D1 and D2 showed that they boarded the same bus, the destination of which was the Peak, in Central at 5:13 p.m. on 17 February 2019.

11.CCTV footage of the Peak Tower captured both defendants walking along Findlay Path, a road which could lead to the House, towards the Peak Tower between 19:38:00 and 19:38:22 on 17 February 2019.  D2 was seen pulling a suitcase with orange edges, which was identified by PW1 as having been stolen from the House.

Mitigation

D1

12.He is 24 and has a clear record.  His counsel Ms. Mohamed informed me that D1 was a manager of alarm systems at a mall in his home country.  D1 has a daughter (aged 2), who is looked after by his partner.  D1's parents are in their late 50s.  He also has a younger sister (aged 16) who suffers from Down Syndrome.  D2 is D1's half elder brother. 

13.In mitigation, Ms. Mohamed submitted that D1 has serious financial difficulty back home.  His younger sister is unable to take care of herself and requires constant medical assistance.  His mother has undergone hip replacement surgery and is wheelchair bound.  D1 committed the present offence because he was desperate for money and saw an opportunity for making some quick money.

D2

14.He is 36 and has a clear record.  His counsel Mr. Bullett informed me that D2 was a merchant/apparel hawker in his home country earning about US$200 per month.  He has a daughter (aged 12) with his ex-wife; two daughters (aged 11 and 1) and a son (aged 2) with his current wife.  D1 is D2's half younger brother.

15.In mitigation, Mr. Bullett submitted that D2 has serious financial difficulty back home.  He was struggling to support his family, including his parents and his younger sister who suffers from Down Syndrome.  D2 committed the present offence because he was desperate and took advantage of the opportunity when it arose.

Sentence

16.Unless they got their plane tickets for free, the defendants must have at least paid something to fly to Hong Kong. I have asked both defence counsel why the defendants came all the way to Hong Kong from Chile when they could not even make ends meet. Ms. Mohamed's reply was D1 did not wish to give her specific instructions on this matter. Mr. Bullett's reply was D2 came to Hong Kong to look for opportunities in trading. I have no hesitation in rejecting both D1's and D2's explanation.

17.If what they have told their respective counsel about their personal circumstances is true, I have no difficulty in finding that their sole purpose of coming to Hong Kong is to look for ways to obtain financial gain by illegal means.

18.D1 and D2 may well have a younger sister with Down Syndrome and a mother who is wheelchair bound. Yet, they chose to spend their limited resources on plane tickets to fly to Hong Kong to look for opportunities to make some easy and quick money. The logic is absurd. It is absolutely not an excuse for them to come to Hong Kong to commit crimes. Regardless of their reasons, the Hong Kong courtshave, time after time, expressedin very clear terms that being in financial difficulty (however serious) or having a sick family member is no mitigating factor for committing a crime.

19.In respect of the loss suffered by PW1, both prosecution and defence have come to an agreement that the total value of the cash stolen from the House was roughly HK$2.5 million. Regarding the "jewellery" items, Ms. Mohamed and Mr. Bullett indicated that they are not in a position to either agree or disagree their total value. According to prosecuting counsel Mr. Wong, the total value of those items claimed by PW1 is about HK$1.47 million.

20.Both defence counsel have pointed out (and I accept) that the cash found on both defendants may not be the same banknotes stolen from the House. Both defendants, however, have no objection to the prosecution's application disposal of exhibits that the cash in major currencies found on them be returned to PW1. In other words, according to Mr. Wong's calculation, PW1 would get back from D1 and D2 a total of roughly HK$240,000 and HK$200,000 respectively. In relation to the "jewellery" items, E1 to E9 and E11 to E12 would of course be returned to PW1. I note that at least 9 watches and 9 brooches are still missing.

21.The normal starting point for domestic burglary is 3 years' imprisonment. Setting aside the "jewellery" items, the value of the stolen cash alone is significant, which must be an aggravating factor. Another aggravating factor is both defendants acted in concert. Furthermore, even though they entered Hong Kong legally as visitors, they obviously came with ill intentions and bad motives.

22.Based on the above aggravating factors, I adopt a starting point of 3.5 years' imprisonment for both defendants. With their timely guilty pleas, the sentence is reduced to 28 months each. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence each defendant to 28 months' imprisonment.