HKSAR v. Bautista Dominic Catedrilla (also known as Bautista Dominic Caterilla)

DCCC 444/2019

[2020] HKDC 400

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 444 OF 2019

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REASONS FOR SENTENCE

1.The defendant pleads guilty to two charges of theft, contrary to section 9 of the Theft Ordinance[1] (charges 1 & 3) and one charge of burglary, contrary to section 11 of the Theft Ordinance (charge 2).

2.Full particulars of the offences are set out in the facts admitted by the defendant on 2 June 2020.  In summary between 25 September 2018 and 25 December 2018 the defendant stole unattended bags from two shops in Mong Kok and burgled a room in a guesthouse where he had previously stayed.

Charge 1 - theft

3.At around 1500 hours on 25 September 2018 Ms Chan was shopping in “Cotton On” on the 1/Floor of One Grand Tower, No. 639 Nathan Road in Mong Kok. 

4.While shopping Ms Chan placed her brown shoulder bag on the floor of the shop. When Ms Chan was not paying attention to her shoulder bag the defendant picked up the shoulder bag and left the shop.

5.The defendant’s actions were captured on CCTV.  Screen captures taken from the CCTV have been submitted to court[2]. Mr Ross explained that the CCTV shows the defendant bending down by the clothes racks and reaching underneath the rack to take Ms Chan’s bag.  This is accepted by Miss Zahir. 

6.Ms Chan’s shoulder bag contained her wallet, Hong Kong identity card, Octopus card, Home Visit Permit, ATM card and about $300 cash. 

Charge 2 - burglary

7.Ms Lam was the owner of the Oi Suen Guesthouse, Flats 811-812 and 814, 8/Floor, No. 83 Argyle Street, Mong Kok.  Ms Lam lived in Room 12 of Flats 811-812.  Photographs showing the guesthouse and Room 12 have been submitted to court.

8.On 5 October 2018 the defendant checked into a room for one night and checked out the next day, 6 October 2018.

9.At around 1400 hours on 7 October 2018 Ms Lam went to work at the reception leaving her wallet inside her room on her bed and the door of her room half open. 

10.At around 1630 hours Ms Lam discovered that her wallet was missing.  Ms Lam’s wallet contained her Hong Kong identity card, Home Visit Permit, nine credit cards and about $25,000 cash.

11.CCTV camera installed in the guesthouse captured the defendant entering Room 12 at around 1509 hours on 7 October 2018 and leaving within one minute.  Screen captures taken from the CCTV have been submitted to court[3].

Charge 3 - theft

12.At around 2240 hours on 25 December 2018 Ms Zhang was shopping in “MLB” on the Ground Floor of Nos. 52-54 Sai Yeung Choi Street South in Mong Kok.

13.Ms Zhang placed her white paper bag, containing her iPad, on the sofa inside the shop. When Ms Zhang was not paying attention to her bag the defendant picked up the bag and left the shop.

14.The defendant’s actions were again captured on CCTV.  Screen captures taken from the CCTV have been submitted to court[4].

Arrest

15.The defendant was arrested on 6 March 2019[5].

Mitigation

16.In passing sentence, I have carefully considered the oral and written submissions of Miss Zahir, including that the defendant has reflected on his misdeeds while on remand and understands that he needs to break the cycle of reoffending[6]. 

17.I have read the defendant’s mitigation letter in which he says he committed the offences due to his drug addiction and that having spent sixteen months in custody he is now clean of drugs and is confident that he can reintegrate without relapse.  

18.I have also read the mitigation letter written by the defendant’s mother who is in court today to support her son.  The mother has noticed positive changes in her son during his recent incarceration and once again sees the funny boy they knew before he started taking drugs.

Starting point

Theft (charges 1 & 3)

19.Theft of unattended bags, as Miss Zahir accepts, is to be equated with pickpocketing[7].  

20.In HKSAR v Ngo Van Huy the Court of Appeal confirmed the guideline sentence for pickpocketing after trial is 12 to 15 months' imprisonment for a first offender, where there are no aggravating features[8]. 

21.In determining where in the range of 12 to 15 months a sentencing court should commence will depend on the facts of the case including the circumstances of the theft; the value of the property stolen; the age or vulnerability of the victim and the expertise used in the theft.  The sentencing court will however need to avoid double counting by taking into account a matter later considered as an aggravating feature[9]. 

22.Taking into account that the thefts took place in shops in Mong Kok; the skill used to commit the first theft and that the second theft was committed on a traditionally busy day, Christmas day, I am satisfied a starting point of 15 months’ imprisonment is appropriate for charges 1 & 3.

Aggravating features

23.The fact an accused is a persistent offender is an aggravating feature.  The defendant has appeared in court on nine occasions resulting in fourteen convictions, six for theft with one specifically stated to be pickpocketing. 

24.The defendant last appeared in court on 18 April 2019 when he was sentenced to DATC for shoplifting committed on 5 February 2018[10]. The defendant was arrested on 6 February 2018 and first appeared in court on 13 April 2018.  The case was adjourned to 21 May 2018.  The defendant was granted bail but failed to surrender to court on 21 May 2018.  The defendant was rearrested on 7 March 2019 and appeared in court the same day when he was remanded in custody.     

25.The present offences were therefore committed while the defendant was on court bail albeit he had failed to surrender to court as appointed on 21 May 2018. 

26.By reason of the defendant’s persistent offending I am satisfied the starting point for charges 1 and 3 is to be increased by 6 months to 21 months’ imprisonment.

27.Giving the defendant full credit for his pleas of guilty reduces the sentence on charges 1 and 3 to 14 months’ imprisonment. 

Burglary

28.Room 12 was used as the residence of Ms Lam.  The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.

29.Miss Zahir in asking for leniency says that at the time the defendant was visiting his friend who was staying at the guesthouse.  On seeing the door half open the defendant entered and stole the wallet[11].  

30.Although Ms Lam left the door of her room half open this is not a case of the defendant stealing food or items of little value[12].  The defendant stole Ms Lam’s wallet which included $25,000.

31.Taking into account this is not the usual domestic burglary in which premises are broken into I adopt a slightly lower starting point of 2 years and 6 months’ imprisonment. 

32.Although the defendant is a persistent offender for offences of dishonesty taking into account he has no previous convictions for burglary I do not enhance the starting point by reason of his previous convictions. 

Timely plea of guilty

33.The defendant first appeared in the District Court on 25 June 2019 when the case was adjourned to 6 August 2019 for Legal Aid to instruct counsel and to give the defendant legal advice.  On 6 August 2019 the defendant first indicated his plea of guilty to the theft charges and not guilty to the burglary charge. 

34.The case was further adjourned to 26 September 2019 for the defendant to locate a defence witness and further legal advice.  On 26 September 2019 the case was again adjourned to 28 November 2019 to enable the defence to interview the defence witness who was in custody.  

35.On 28 November 2019 due to the ill health of counsel the case was further adjourned to 16 January 2020 to reassign new defence counsel.

36.On 16 January 2020 the defendant confirmed his plea of not guilty to burglary and asked for a further adjournment for the papers to be translated into a language he could understand.   The case was adjourned to 18 February 2020.

37.With the onset of the Covid-19 virus the case was further adjourned under the General Adjournment Period.  The case was dealt with on paper.   On 23 March 2020 following the defendant’s confirmation of his plea of not guilty the trial of charge 2 was fixed to commence on 2 June 2020.

38.The first indication the defendant would plead guilty to burglary was when the solicitors for the defendant wrote to the court last Friday, 29 May 2020 informing the court that the defendant will plead guilty to all charges. 

39.The defendant having only indicated his plea of guilty five days prior to trial he is not entitled to a full one third discount. 

40.In HKSAR v Ngo Van Nam the Court of Appeal stated that subject to the overriding discretion of the judge in sentencing, a defendant who gives the Court or the prosecution an indication of a plea of guilty after plea day and before the first day of trial is to be afforded a discount between 25% and 20%.  In determining the appropriate discount the court further stated that the judge will have regard to the time at which the indication to plead guilty was given and all other relevant circumstances[13].

41.I am satisfied a discount of 20% is appropriate which reduces the sentence to 2 years’ imprisonment.

Totality

42.The three offences are separate and distinct for which consecutive sentences are appropriate. 

43.Taking into account the seriousness of the offences; the stolen property has not been recovered; the defendant’s personal circumstances and that since his arrest the defendant has served a period in the DATC, I am satisfied a total sentence of 2 years and 9 months’ imprisonment properly reflects the defendant’s overall criminal culpability on the three charges[14].  

Sentence

44.The defendant is convicted and sentenced as follows:

CHARGE 2 – 2 YEARS’ IMPRISONMENT;

CHARGE 1 – 1 YEAR AND 2 MONTHS’ IMPRISONMENT WITH 6 MONTHS CONSECUTIVE AND 8 MONTHS CONCURRENT TO CHARGE 2; AND

CHARGE 3 – 1 YEAR AND 2 MONTHS’ IMPRISONMENT WITH 3 MONTHS CONSECUTIVE AND 11 MONTHS CONCURRENT TO CHARGES 1 & 2.

THE TOTAL SENTENCE TO BE SERVED BY THE DEFENDANT IS 2 YEARS AND 9 MONTHS’ IMPRISONMENT.

[1] Cap 210.

[2] Screen captures were submitted on 2 June and 4 June 2020.

[3] Screen captures were submitted on 2 June and 4 June 2020.

[4] Screen captures were submitted on 2 June and 4 June 2020.

[5] See §[e] of the antecedents.

[6] See §11 of the defendant’s written mitigation. 

[7] See §4 of the defendant’s written mitigation.  Also see HKSAR v Aguilar Garcia Milner Javier CACC 485/2012.

[8] [2005] 2 HKLRD 1.

[9] See HKSAR v Chiu Suet Yee, Angel CACC 105/2010 at §§10-12.

[10] KCCC  1134/2018.  Relevant case papers were obtained from the Kowloon City Magistracy and shown to Miss Zahir. 

[11] See §6 of the defendant’s written mitigation. 

[12] See for example HKSAR v Law Tin Yam CACC 258/2010 and HKSAR v Cheung To Ming [2006] 2 HKLRD 260;

[13] [2016] 5 HKLRD 1 at §224.

[14] See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 and HKSAR v Pau King Kong [2013] 3 HKLRD 676.