HKSAR v. Abad Wilbert Magan

DCCC 591/2021

[2022] HKDC 338

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 591 OF 2021

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REASONS FOR SENTENCE

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1.The defendant is convicted after trial of the 2^nd charge of loitering causing concern, and for the 3^rd charge breach of condition of stay, he is convicted on his own plea.

THE FACTS OF THE CASE

Charge 2 Loitering causing concern

2.On the night of 15 October 2021, when PW1 was walking up to her roof to do laundry, [it was a village house, and there was a small gap about an arm length between her house (“House 26”)  and the adjacent house (“House 3A”)  ] when she got up to the top floor, she found the door leading to roof area was blocked, she pushed opened the door again and found the defendant was behind the door, the defendant said sorry twice and ran away, she screamed for help.  The defendant climbed over from the roof of the adjacent house to PW1’s house and loitered on PW1’s rooftop.

3.The defendant was later found in a subdivided unit at the adjacent house, report was made and the defendant was arrested.

Charge 3 Breach of condition of stay

4.The defendant came to Hong Kong to work as a domestic helper on 6 January 2013, however, his contract was terminated on 20 April 2013, extension of stay was sought and extended to the 6 May 2013.  The defendant had not applied for an extension of stay since, there was no record of him leaving Hong Kong.  The defendant was arrested on 19 March 2021 after he made a report to the police claiming he was a victim in an assault case.

5.The defendant had overstayed for a total of 7 years 10 months 12 days.

MITIGATION AND SENTENCE

6.The defendant is 35 years old, he is a man of clear record, his girlfriend is now in Philippine and they have a boy aged 2.  Before he came to Hong Kong to work as a domestic helper, he worked as a security guard in a company.

7.After his contract was terminated in Hong Kong in 2013, he stayed in Hong Kong and mainly relied on friends and his girlfriend when his girlfriend was still in Hong Kong.

8.For the Loitering charge, he is convicted after trial, counsel sought to argue the criminality is at the lower end of the scale, since no weapon was used, no one was injured.  I cannot accept this submission, had any weapon been used or someone had been injured, I am certain the outcome of this trial or the charges that he faced would have been very different.

9.As I said in the verdict, how PW1 would feel when she walked up to her roof and found a complete stranger there.  In particular, the roof top was only accessible from the inside, or by climbing over the gap between her house and the house next door.  The presence of the defendant had caused PW1 to scream for help, it is not difficult to imagine the amount of fear and anxiety that she went through that night.

10.Having considered all mitigating factors put forward and the facts of the case, I adopt a starting point of 12 months and I do not see any reason to reduce it, for the loitering charge, the defendant is sentenced to 12 months’ imprisonment.

11.For the overstaying charge, the only mitigating factor is his plea of guilty, he had overstayed for 7 years 10 months 12 days, given the length of his overstay, the proper sentence is one of immediate custodial sentence, I do bear in mind the fact that there is no evidence suggesting he had worked during his overstaying period and he has a clear record, I will adopt a starting point of 9 months and reduce it by a third, he is sentenced to 6 months’ imprisonment for this charge.

12.Finally, I have not overlooked the totality principle, given the 2 offences are distinct and unrelated, I will order 4 months of the 3^rd charge to run consecutively to the 2^nd charge, making it a total of 16 months’ imprisonment.