HKSAR v. Dela Rosa Arnulfo Siblang

DCCC 920/2020

[2021] HKDC 469

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 920 OF 2020

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Burglary" (Charge 1) and a charge of "Possession of a dangerous drug" (Charge 2). He stole a piece of copper wire from the staircase of a residential building and was in physical possession of 1.40 grammes of "ICE".

Summary of Facts

Charge 1

2.The premises particularized in Charge 1 were a 9-storey residential building situated at No.74 Percival Street, Causeway Bay ("the Building").  It had no watchman or metal gate at its entrance.

3.About 10:00 a.m. on 15 August 2020, a resident of the Building (PW1 Mr. Ip) noticed the copper wire near the electricity metre at the 7^th Floor front staircase of the Building having been cut off.  It was later confirmed that a piece of copper wire (3.5 metres in length and valued at $1,000) was missing. The Police was alerted.

4.The piece of stolen copper wire was part of the grounding wires connected to the lightning rod erected on the top of the Building for prevention of electrocution or fire in the Building.

5.CCTV footage revealed that about 3:15 p.m. on 10 August 2020, the defendant used a pair of pliers to cut off the copper wire near the electricity metre.  He walked upstairs afterwards.  No pliers or copper wire were found on the roof of the Building.  The roofs of adjacent buildings were interconnected.

Arrest

6.On 16 August 2020, PC 14501 (PW2) saw the defendant acting furtively outside No.230 Wan Chai Road in Wanchai.  He stopped the defendant for enquiries.

7.Having previously viewed the CCTV footage of the Building, PW2 found the defendant and the culprit who cut the copper wire looking alike.  Upon enquiries, the defendant admitted in English that he stole a piece of copper wire from the Building and sold it.  PW2 arrested him.

Charge 2

8.Whilst waiting for the police vehicle, the defendant took out a transparent resealable plastic bag (Exhibit 1) from a hole near the front zipper of his jeans.  He told PW2 "It is ICE" in English.  It was later confirmed that Exhibit 1 contained 1.40 grammes of a crystalline solid containing 1.40 grammes of methamphetamine hydrochloride.

Admissions

9.With the assistance of Tagalog and English interpreters, 2 Records of Interview were obtained from the defendant.  In respect of Charge 1, he admitted that he was the culprit depicted in the CCTV footage.  He sold the copper wire at a junk shop in Causeway Bay for $20.  He discarded the pliers in a rubbish bin somewhere. He used the money to buy food since he had not eaten for 2 days after losing money in gambling.  For Charge 2, he claimed that he bought Exhibit 1 at $700 on 16 August 2020 for self-consumption.  He hid Exhibit 1 in his jeans so that it could not be found.

Mitigation & Sentence

10.The defendant is 44 and has 8 conviction records, which included 3 "simple possession" offences and 2 "Burglary" offences. Defence counsel Mr. But informed me that the defendant is divorced and resides with his parents in Tuen Mun. He came to Hong Kong from the Philippines in 1996. His last job was a cleaner at a golf club from April to July 2020. He was unemployed at the time of his arrest. The defendant has not kept in contact with his ex-wife or son (aged 20), both are residing in the United States.

11.In mitigation, Mr. But submitted that the defendant was cooperative with the Police throughout. He surrendered Exhibit 1 on his own volition. Mr. But explained that on 13 August 2020, the defendant received $10,000 from the Cash Payout Scheme. He therefore could afford to purchase Exhibit 1 for his own consumption. He bought it shortly before his arrest and was on his way home to Tuen Mun.

12.In relation to Charge 1, Mr. But relied on HKSAR v Suen Chi-wai [2015] 5 HKLRD 33, in which the Court of Appeal held that if it can be shown that the intruder was stealing from the common areas of a building only and not from inside individual homes, a starting point lower than that of the customary one may be justified[1].

13.Regarding Charge 2, Mr. But submitted that Exhibit 1 could only last the defendant for about 2 days; there is hardly any latent risk.

14.For Charge 1. I will follow Suen Chi-wai and adopt 2.5 years' imprisonment as the starting point. I, however, find 2 aggravating factors exist in the present case, namely the risk of fire or electrocution due to a damaged lightning rod setup and this is the defendant's 3^rd Burglary conviction. I consider it just and appropriate to increase the starting point to 3 years. With the timely guilty plea, the sentence is reduced to 2 years. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 2 years' imprisonment for this charge.

15.For Charge 2, I accept that there is hardly any latent risk of trafficking. On the other hand, this is the defendant's 4^th conviction of "simple possession". Even though the quantity of "ICE" involved was 1.40 grammes, I consider a starting point of 15 months' imprisonment appropriate. With the timely guilty plea, I sentence the defendant to 10 months' imprisonment for this charge.

16.Bearing in mind the totality principle, I order 6 months in Charge 2 to run consecutive to the sentence of Charge 1. Hence, arriving at a total prison term of 2 years and 6 months for both charges.