HKSAR v. Miranda Mark Anthony Diaz and Another

DCCC 92/2020

[2020] HKDC 963

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 92 OF 2020

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REASONS FOR SENTENCE

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Charges

1.There are five charges and two defendants, D1 and D2.

2.Charges 1 to 4 are burglary counts, while Charge 5 is attempted burglary.  D1 is charged with all the five counts.  D2 is jointly charged with D1 in Count 4 and Count 5. 

3.D1 pleads guilty to Charges 1 to 5, while D2 pleads guilty to Charges 4 and 5.

Facts

4.The targeted premises in Charges 1 to 5 were all restaurants in the Sheung Wan and Western Districts.  They are called Restaurant 1 to 5, respectively. 

Charge 5

5.At around 2.20 am on 28 October 2019, police officers saw D1 and D2 wandering outside Restaurant 5 at Graham Street, Central.  D1 squatted and tried to open the rolling shutter of Restaurant 5. He failed.  D2 was standing nearby.  D1 further used his body to try to crash open the rolling shutter but he also failed.  The two defendants eventually left the scene.  Police officers lost sight of them for some time but later intercepted the two defendants respectively nearby.

6.Police officers found on D1 a pair of plastic gloves and a torch.  D1 admitted he wanted to enter Restaurant 5 to steal.  He said D2 worked in that restaurant so D2 knew about the place.  D1 alleged D2 suggested stealing form Restaurant 5. 

7.The other defendant, D2, told the police he intended to steal with D1 from Restaurant 5 after the staff there had left.  He admitted he made the suggestion to D1.

Charge 4

8.D1 and D2 also admitted their guilt on Offence 4. 

9.Offence 4 took place at Restaurant 4 in the Western District, six days before Offence 5.  On the night of 21 October 2019, a staff member of Restaurant 4 checked the cash register before leaving.  There were $6,200 in the cash register.  The next morning, someone found the restaurant had been burgled and the money in the cash register had gone.

10.The entrance lock of Restaurant 4 was damaged. The cash register was broken. 

11.D1 admitted to the police that D2 brought him to the place.  D1 said he acted as a lookout while D2 went inside the restaurant to steal.  D1 says he did not know how much money D2 had taken from Restaurant 4.

12.On the other hand, D2 told the police that D1 broke into Restaurant 4 first.  The two stayed inside the restaurant for 15 to 20 minutes and stole some money therein. [In court, D2’s counsel says D2 on that occasion only acted as a lookout.]

Charges 1 to 3

13.D1 made further admissions to the police. 

Charge 3

14.On 20 October 2019, the owner of Restaurant 3 in the Sheung Wan District checked his restaurant before leaving.  The next morning, he found the entrance lock and cash register broken.  The place had been ransacked.  About $29,000 and two bottles of liquor valued at $3,500 were missing.

15.CCTV records showed that a masked man broke into the restaurant around 5.12 am.

16.D1 admitted to the police that he had stolen from Restaurant 3.  He has spent all the stolen money except leaving $540 on his body which the police seized from him during his arrest on 28 October 2019.

Charge 2

17.Offence 2 also took place on 20 October 2019 at Restaurant 2 in the Sheung Wan District.  The manager of that restaurant secured the place before leaving.

18.The place was found to have been burgled later. Around $5,000 were lost.  The entrance lock was broken.

19.CCTV records showed a masked man broke into Restaurant 2 at around 4.42 am that day.  The burglar left five minutes later.

20.D1 admitted to the police that he entered Restaurant 2 and took all the money from the cash register.  He had spent all the money.

Charge 1

21.Offence 1 took place at Restaurant 1 in the Sheung Wan District on 29 September 2019.  D1 was a former staff in that restaurant.

22.CCTV records showed a masked man broke into Restaurant 1 by kicking open the door at 3.06 am.  He then entered the password to open the cash register and took $5,000 from there.  He also took away a bag from a cabinet.  The bag contained $20,000. 

23.D1 admitted to the police that he had worked in Restaurant 1 for four to five months, and left the job in August 2019.  He had stolen the money from the cash register and the cabinet.  He spent all the money.

Record

24.D1 was born in May 1996.  He is now aged 24. 

25.D1 has three previous convictions.  The first conviction was in 2014, for possession of offensive weapons.  His second conviction was in April 2015 for assault occasioning actual bodily harm.  His third conviction was also in April 2015.  He was guilty of six counts of burglary in DCCC 939/2014.  He was sent to prison for a total of 25 months’ imprisonment for those six counts of burglary.

26.D2 was born in April 1996, so he is a month older than D1.  He has a clear record. 

Mitigation

D1

27.D1 is aged 24 now.  He was born in Hong Kong. Counsel says D1 had worked as a bartender but lost his job.  D1 has two children with his fiancée.  The two young children are aged one and two, respectively.  D1 was the sole breadwinner of the family.  He fell into financial difficulties after losing his job during the social unrest period.

28.Counsel says the burglaries and attempted burglary committed by D1 in the present case were not skilfully executed or with much planning.  Counsel points out that no specialist or heavy equipment was deployed during the commission of the offences.

29.Counsel points out the total value of property involved in Charges 1 to 4 was around $68,000, while the victim in Charge 5 suffered no loss because it was a failed attempt of burglary. 

30.Counsel says D1 is remorseful.  He also says D1 has been suffering depression. 

31.Counsel asked the court to impose on D1 a total sentence as lenient as possible. 

32.Counsel agrees that D1 has similar convictions and can be considered as a recidivist.  Counsel also correctly points out that Offences 4 and 5 were committed by the two defendants together.  That is an aggravating factor in sentencing. 

33.D1 has written a mitigation letter to the court.  He expresses his remorse and pleas for leniency.  His fiancée also writes to say he is a good family man.

D2

34.D2 is aged 24.  He has no previous conviction. D2 was born in the Philippines.  He was brought to Hong Kong at the age of two.  His parents separated later.  D2 then lived with his mother.

35.D2 had studied in the UK but returned to Hong Kong in 2016.  He then worked as a bartender.

36.Counsel says D2 had known D1 since 2011.  D1 had bad influence on D2.  Counsel says D1 was the prime mover in Offences 4 and 5. 

37.Counsel says the two defendants were working in the same bar in 2017.  They then rented a place to live together, also with D1’s family.  To cover the expenses, D2 had to take out a loan of $50,000 from a finance company.

38.Months later, both defendants lost their job. D2 was able to find new employment but D1 could not.  D2 had to pay the rent and contribute to maintain D1’s family.  He finally moved out in mid-2018.

39.D2 came upon D1 again some time in 2019.  They then met about once a month. 

40.Counsel says that at the time of Offences 4 and 5, D2 still owed money to the finance company. 

41.On 22 October 2019, D1 went to where D2 was working.  The two later went out for drinks.  D1 suggested committing burglary and said it was a good way to help D2 to pay off his debt.  D2 at first was reluctant to follow but finally agreed to act with D1. 

42.Counsel said D1 forced open the door of the restaurant in Offence 4.  D2 just kept watch by the doorway.  D1 went inside to steal and later gave D2 some $10 and $20 notes.  D2 kept the money and the money was seized by the police when D2 was arrested on 28 October 2019.  It turned out the $10 and $20 notes totally comprised $4,200.

43.Counsel says that on 28 October 2019, the two defendants met up for drinks again.  D2 was quite drunk at that time.  He foolishly discussed with D1 on committing burglary.  He even suggested the two should go to steal from Restaurant 5. However, D2 only acted as a lookout. Counsel says D1 himself had been a customer to Restaurant 5 on many occasions, so D1 was familiar with the place.

44.Counsel says although D2 was an employee of Restaurant 5, at the time of offence 5 D2 was already off-duty.  He did not have the key to the premises.  Counsel says D2 as such was not abusing his employee’s position.  Nevertheless, counsel accepts the employment factor can be taken into account against D2 in sentencing.

45.Counsel says D2 is now fully remorseful and plans to study further.  He has already enrolled for an external course and has also been offered a place to study in the United Kingdom.  That university offer is open until 1 December this year. 

46.Counsel says D2 has been held in custody since his arrest in late October 2019.  It is almost a year now.  Counsel asked the court to impose a lenient sentence on D2 so as to allow D2 to be free to take up the university offer in the UK in time.  Counsel says D2 plans to live with his father, who is willing to move from Singapore to the UK.

47.D2 is willing to pay compensation to the victim in Count 4.  Counsel asked the court to reduce the sentence for that count accordingly. 

48.D2, his father and his former secondary school teacher have written letters to the court to plea for mitigation.  D2 says he is remorseful and would not offend again.  His father and former teacher both speak well of him.

Sentence

49.D1 committed Offences 1 to 3 by himself.

50.Offence 1 took place on 29 September 2019.  The victim lost $25,000.

51.Offence 2 occurred about three weeks later on 20 October 2019.  The victim lost $5,000.

52.Offence 3 took place on the same day as Offence 2, about half an hour later at a different street in the Sheung Wan District. The victim lost $29,000 and two bottles of wine valued at $3,500. 

53.D1 and D2 committed Offences 4 and 5 together. 

54.Offence 4 occurred on 22 October 2019.  The victim lost $6,200.  The cost for repair of the damaged lock was $1,200.

55.Offence 5 occurred six days later on 28 October 2019.  Both defendants were arrested after the failed burglary attempt.  The victim suffered no loss.

56.All the premises in question were restaurants, ie, non-domestic places. 

57.In Count 5, police saw D1 try to force open the rolling shutter of Restaurant 5.  D2 stood nearby as a lookout.  However, D2 admitted to the police that he made the suggestion to D1 to go to Restaurant 5 to burgle.

58.There was some dispute as to who actually went inside the restaurant in Count 4 to steal and who acted only as a lookout. While D2 told the police that he and D1 remained in the premises for 15 to 20 minutes, his counsel says in court that D2 only remained by the doorway as a lookout.  On the other hand, D2 told the police that he was a lookout on that occasion.  D2 went inside the restaurant to steal.

59.The dispute in relation to Count 4 is actually immaterial for the purpose of sentencing.  D1 and D2 were in joint enterprise on that occasion, as they were in Count 5.  Counsel for D2 says D1 was the prime mover in both Offences 4 to 5, but D1 himself admitted to the police that he made the suggestion to go to Restaurant 5 to steal.  The two defendants have the same liability in either Count 4 or Count 5.

60.I agree with counsel for D2 that there was no breach of trust involving Offence 5.  D2 was already off-duty.  He was not entrusted with keeping keys or account in the restaurant.  He should not be regarded as abusing his employee position when he after work went with D1 there to steal from the restaurant.

61.Again, in Charge 1 although D1 was a former employee of Restaurant 1, he had already left his job for about a month.  There was no breach of trust involved. 

62.The normal starting point for burglary or attempted burglary in relation to non-domestic premises is one of 30 month’s imprisonment but it can be enhanced or lowered accordingly.

63.In Counts 1 to 3, there was breaking of lock and/or cash register in each case. However, the use of force was minimal.  There was also no evidence of meticulous planning.  As such, the starting point for each of Counts 1 to 3 can be reduced by 3 months.

64.The prosecution of Charges 1 to 3 relies solely on D1’s admission made to the police.  For D1’s frank admission, I would lower the starting point of Charges 1 to 3 by another 3 months. 

65.The same ‘3 months and 3 months’ reduction can apply to Count 4, where the force used in the offence was minimal and both defendants made frank admission to the police, resulting in their prosecution and conviction.

66.The situation in Offence 5 is a bit different. Police officers saw the defendants attempting to burgle into the Restaurant 5.  The two defendants failed in their effort.  They left the scene but some time later they were intercepted by the police in the vicinity respectively.  Apparently, they were positively identified by the officers. Nevertheless, the two defendants made frank admission to the police about Offence 5.  For this, I would give the two defendants a one month reduction of the starting point in relation to Offence 5.  Also, there was minimal forced used in the commission of Offence 5 by both defendants. And for that, I will give both defendants a three-month reduction in the starting point.

67.There was, however, an aggravating factor in Offences 4 and 5.  The two defendants jointly committed those two offences.  Such aggravating factor justifies an enhancement of 3 months’ imprisonment in the starting point. 

68.D2 has a clear record.  However, D1 has similar previous convictions.  In 2015, he was guilty of six counts of burglaries. That is another aggravating factor against D1. And for that, I would enhance the starting point against D1 in Counts 1 to 5 by 3 months.

69.Taking the above discussion into consideration, in D1’s case I adopt a final starting point of 27 months’ imprisonment in each of Counts 1 to 3.  D1 pleads guilty in time, he is entitled to one-third discount. So on each count of Offences 1 to 3, he is sent to prison for 18 months. Count 4, I adopt a final starting point of 30 months’ imprisonment.  After one-third discount for his plea of guilty, D1 is sent to prison for 20 months. Count 5, I adopt a final starting point of 32 months’ imprisonment.  After one-third discount for his plea of guilty, I send D1 to prison for 21 months and 10 days.

70.Counts 1 to 5 are separate and distinct offences.  The sentences can run consecutively but I have to take into account the issue of totality.  I think it is right to order that 3 months’ imprisonment of each of Counts 1 to 4 to run consecutively to one another and to run consecutively to the 21 months and 10 days’ imprisonment in Count 5, bringing the total sentence of Counts 1 to 5 for D1 to 33 months and 10 days.

71.In D2’s case, I adopt 27 months’ imprisonment as the starting point for Count 4.  D2 pleads guilty in time. He is entitled to one-third discount.  I thus send D2 to prison for 18 months in Count 4. In Count 5, I adopt 29 months’ imprisonment as the starting point.  After one-third discount for his plea of guilty, I send D2 to prison for 19 months and 10 days.  I also have to consider the totality issue in D2’s case.  I further have to consider that he will pay full compensation to Restaurant 4 in Count 4.  Thus, I would only order 2 months’ imprisonment of Count 4 to run consecutively to the 19 months and 10 days’ imprisonment in Count 5, bringing the total term for these offences to 21 months and 10 days.

72.The $4,200 seized from D2 by the police will be returned to Restaurant 4.  In addition, D2 has to pay Restaurant 4 a further $3,200 within 7 days.