HKSAR v. De Vera Dennis and Another

DCCC 1123 & 1165/2021 (Consolidated)

[2022] HKDC 953

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 1123 and 1165 OF 2021

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REASONS FOR SENTENCE

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1.In these proceedings, the two defendants are brothers, namely Dennis De Vera (D1)  and Cloyd De Vera (D2). They faced altogether five counts, four of which are “Burglary”, the last one “Possession of Dangerous Drugs”. Charge 1 and Charge 3 are burglaries charges against both defendants jointly, whereas D2 alone faces two other counts of burglary and one count of possession of dangerous drugs. They admitted the facts and pleaded guilty; on this basis they are convicted as charged.

Charge 1 (against both of the defendants)

2.On the 3^rd day of June 2021, about 9.30 pm, the two defendants went to a business premises situated in Nathan Road.  They gained entrance by breaking the glass door and ransacked the place.  Their actions were captured by CCTV and the clothings they wore were later found in their premises.  In the course of breaking the window, the 2^nd defendant sustained injuries and his blood was found on the premises in question.  He also left his fingerprint therein. 

3.Altogether two mobile phones, one laptop computer and a small amount of cash had been stolen.  The total loss of the owner of the premises added up to $54,000.

4.Under caution, the 1^st defendant admitted to have entered the premises; the 2^nd defendant admitted to have broken the glass door with a plier and ransacked therein.

The 3^rd charge (against both defendants)

5.It took place on 9 June 2021.  The two defendants entered into a shop situated in Knutsford Terrace, Tsim Sha Tsui as trespassers and stole therefrom.

6.The CCTV footage revealed that it was D2 who did the breaking in and followed by D1.  In all, they stole 37 bottles of wine or spirits and a cashier machine.  The total value of the loss was $59,380.

7.It was subsequently revealed that D1 had been an employee of in the premises from July to December 2019.

8.Under caution, D1 admitted he was a lookout, whereas D2 admitted he had broken the glass door and stole therein.

The 2^nd charge (against D2 alone)

9.It took place on the 3^rd day of June 2021 at 4 am, when the 2^nd defendant broke the glass wall of a convenient store in Tsz Wan Shan and took away a cash box, cash of $3,000, a quantity of SIM cards, 92 packets of cigarettes and two bottles of wine.  The total loss added up to $16,000.

10.Under caution, D2 admitted to have committed the burglary.

The 4^th charge (against D2)

11.It took place on 22 June 2021.  At about 3 am, D2 broke into a restaurant situated at Queen’s Road West.  D2 prised open the front door with another man acting as a lookout.  Both of them entered the restaurant and took away some cash, one notebook computer, one CPU hard disk, a cell phone and two bottles of whiskey, costing in total $24,700.

12.Under caution, D2 admitted to have committed the burglary with a friend.  He had used a bolt cutter to break the lock to gain entrance into the restaurant.

The 5^th charge (Possession of Dangerous Drugs)

13.On 29 June 2021, the police raided a hotel room which D2 occupied and found, amongst his belongings, four bags containing a total of 0.6 grammes of methamphetamine hydrochloride and a plastic straw with traces of the same dangerous drug.

14.Under caution, D2 admitted that he was a drug abuser. 

Discussion

15.Of these offences, the most serious is burglary.  From the facts, all the premises in question were commercial premises.  The Court of Appeal had already set out clear sentencing guidelines.  Both the prosecution and the defence agreed, in the absence of aggravating factors, for burglary of a commercial premises, the starting point should be 30 months’ imprisonment.

16.In the present case, there are aggravating factors.  In the case of D1, the two offences, namely, Charge 1 and Charge 3 took place within a short span of three days.  For the 3^rd count, the premises in question was the one he had worked for about six months ago; the only inference I can draw was that he was familiar with that shop and he provided information to commit the burglary.

17.I now look at the background of D1.  He is 41 years old.  He is a Hong Kong resident but, his family is in the Philippines.  It is not the first time he committed offences: he had five previous convictions, two of which relating to dishonesty.

18.In the circumstances, I would adopt for both counts a starting point of 30 months.  In view of the aggravating factor I alluded to and after taking into consideration the Totality Principle, I order 15 months of Charge 3 to run consecutive to the 30 months in Charge 1.  In all, the total starting point should be 45 months.

19.Looking at the mitigating factors put forward by his counsel, I did not see any valid reason for leniency except for the fact that he pleaded guilty. In accordance with direction of the Court of Appeal, I reduced the 45 months’ imprisonment down to 30 months, to take effect immediately.

20.In the case of D2, the aggravating factor is that there are four offences committed within the month of June 2021.  In most of the cases, it was he who took the initiative.  He prised open the door; he used a bolt cutter to cut the lock.  In Charge 1, 3 and 4, he also had an accomplice.  Since the offences were committed within a very short span of time, instead of assigning culpability for each count, I would adopt the approach of the Total Culpability. The normal case without aggravating factor for burglary is 30 months, but in the present set of circumstances, I would adopt a starting point of 60 months for all of the four offences and to run concurrently.

21.As for the dangerous drugs case, normally, the law would require this court to order DATC report before sentencing.  In view of the fact that the 2^nd defendant would have to go to gaol for a rather long time, I consider that this requirement can be dispensed with.

22.There are no clear guidelines for possession of dangerous drugs but the normal ones range from 6 to 12 months.  In the present case, there are four small bags, the quantity is relatively small.  I would therefore adopt a starting point of 6 months.

23.It is also an offence distinct from the other four, so it is proper that it should run consecutively to the 60 months’ imprisonment for the four charges of burglaries.  In all, the total starting point for D2 is 66 months.

24.I have taken into account of the mitigations put forward by the lawyer for D2: he had five previous convictions and some of them were dangerous drugs.  The other two are also dishonesty related.  He had been living in Hong Kong in a public housing estate whose registered tenant is D2’s mother.  He has been taking advantage of the Hong Kong welfare system because a place in a public housing estate is precious commodity nowadays, bearing in mind the huge demand for living space.  I would urge the prosecution to alert the Housing Department that the premises D2 was occupying was in the name of his mother who is not in Hong Kong.  He has no right to live there and the apartment should be given to those who are really in need and who are more qualified for such benefit.

25.D2 had been married but is separated.  He lives in Hong Kong with a girlfriend.  He is a construction site worker making $20,000 per month.  He has a pair of twin sons living in the Philippines.

26.Having reviewed his background, I see no valid factor to exercise clemency in his favour.  The only valid mitigation is the fact that he pleaded guilty.  So in accordance with the instructions of the Court of Appeal, I would reduce the 66 months’ imprisonment down to 44, to take effect immediately.