HKSAR v. Sy Manuel Jr. Cama and Another

DCCC 1152/2021

[2023] HKDC 346

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1152 OF 2021

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REASONS FOR SENTENCE

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D1

1.The First Defendant (“D1”) faced one count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. He indicated at the hearing on 21 April 2022 that he would plead guilty to the charge.

2.The particulars of offence are that: He, on 26 June 2021, in Hong Kong, together with another person, having entered as trespassers part of a building known as PROPICE HUMAN RESOURCES COMPANY, Shop NO 42, Ground Floor, Haven Court, No 128 Leighton Road, Causeway Bay (“the Shop”), stole thereon one safe (“the Safe”), cash of $58,000 Hong Kong currency and 3 mobile phones.

3.The brief facts have just been read out and admitted by the D1. In summary, D1 was captured by CCTV that he and other man entered the Shop at around 4:01am and left at around 4:05am on 26 June 2021 and he was carrying something like a black box. He was arrested on 29 June 2021. Under caution, he stated that his friend Cloyd cut the lock of the Shop and stole the Safe inside. In the video-recorded interview, he further said under caution that Cloyd asked him to go for a walk together. When he and Cloyd walked near the Shop, Cloyd used a tool to cut the lock of the Shop and he was very scared so he stepped back. Cloyd then entered the Shop and asked him to enter as well. After entering the Shop, Cloyd passed him an object similar to the shape of a microwave oven. The object was heavy. They then left the Shop.

4.D1 pleaded guilty to the charge and admitted to the facts before me on 4 January 2023. I convicted him accordingly.

D2

5.The Second Defendant (“D2”) faced one count of handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210. He pleaded not guilty and was convicted after trial on 3 February 2023.

6.The issues of the case are whether the prosecution proved beyond reasonable doubt that (1) D2 undertook or assisted in the retention, removal of disposal of the Safe and (2) D2 knew or believed the Safe to be stolen good. It was captured by the CCTV that D1 and D2 entered into a guesthouse (“the Guesthouse”) at about 4:50am of 26 June 2021. They left the Guesthouse with Cloyd at about 5:00am with a suitcase. It was not disputed that the suitcase contained the stolen Safe and they went to D2’s friend, Howard at a subway in Happy Valley. I rejected D2’s testimony and found that the only reasonable and irresistible inference was that D2 knew and/or believe subjectively that the Safe was a stolen good as early as he was in the Guesthouse. D2 took D1 and Cloyd to Howard to open the Safe.

D1’s Mitigation

7.D1 was born in 1984 and is 38 years old. He is married with 3 children aged 8, 9 and 14 and they reside with D1’s wife in the Philippines who is an employee at a call centre.

8.He was originally from the Philippines. He moved with his mother and elder brother to Hong Kong in 1999 and were later followed here by his two other brothers.

9.He worked as a bartender till about 2017 and was unemployed since then. He took part-time bartending jobs and was earning about HK$18,000 per month up till the time he was arrested for a previous offence. He would provide HK$8,000 to support the education of his 3 children in the Philippines and would sometimes give his mother HK$2,000 to 3,000 for living expenses.

10.His mother is 60 years old and works at a restaurant. His elder brother is also a bartender whilst his younger brother is currently in the pursuit of further education but also works as a part-time bartender.

11.D1 has a previous conviction for burglary in 2019 to which he pleaded guilty and was given a custodial sentence.

12.It was submitted by his counsel that D1 was remorseful for committing the present offence. He was unemployed at the time of the offence and had the urgency to financially provide for his three children. He worked very hard at his last job and intends to ask his previous employer to hire him and hopes that he does, so that he can make a fresh start to life.

13.A mitigation was written by the D1 to express his remorse. He mentioned that he committed the present offence out of economic reason i.e. to make provision for his children in the Philippines. He said that during his remand, he has taken steps to rehabilitate by following religion practice and has shown determination to improve his behavior. He promised not to commit any further crime and asked for the Court’s leniency.

Discussion (D1)

14.According to section 11(4) of the Theft Ordinance, the maximum sentence of burglary upon indictment is an imprisonment for 14 years.

15.The proper starting point for sentence in a case of burglary of non-domestic premises is 30 months’ imprisonment. The starting point can be adjusted upwards if there are aggravating circumstances such as:

(1)  the offence is carefully planned and skillfully executed involving the use of heavy instrument or equipment;

(2)  the offence is committed by two or more people;

(3)  the offence targets at substantial premises and involves substantial properties;

(4)  the offender is a professional burglar and not just an opportunist;

(5)  the offender has previous convictions, particularly previous conviction of similar nature, and

(6)  the offender commits multiple offences. (Secretary for Justice v Tsang Hon-yin Anthony, CAAR 5/2004 (16 December 2004), HKSAR v Sim Ka-wing, CACC 450/2000 (30 May 2001), HKSAR v Fan Kit-hung, CACC62/2009 (14 July 2009) and HKSAR v Cheng Wai-Kai, CACC338/2007 (11 June 2008)).

16.It was submitted by the D1 that apart from (2) and (5), this court can properly sentence D1 giving him the full discount from a starting point at or around the “tariff” suggested by the Court of Appeal.

17.There are aggravating circumstances (2) and (5) in the present case. In respect of aggravating circumstance (2), D1 did not act alone in the present offence. It was captured by the CCTV that he and another man entered Haven Court from the front entrance at around 4:01 am. He and the other man left Haven Court from the rear-entrance and D1 was carrying something like a black box. It was admitted by the D1 in the video-recorded interview on 20/6/2021 that he and another person “Cloyd” walked near Haven Street on that night. Further, Cloyd used a tool to cut the lock of the shop.

18.As to aggravating circumstance (5), D1 was sentenced before the Court for three times previously for four offences. He was fined $1,000 for shoplifting in March 2018, and sentenced for 2 weeks for shoplifting in July 2018. In May 2014, he was sentenced to 2 years and 2 months for burglary on 14 May 2019.

19.In my view, D1’s remorse is highly questionable. He committed a similar offence within a short period of time.

20.Despite that the value of the stolen properties was not the highest among this type of offence, there are valid grounds under aggravating circumstances (2) and (5) to justify an upward adjustment of the starting point. I adjust the starting point upward from 30 months to 33 months.

21.In D1’s Further Mitigation Statement dated 22 February 2023, it was submitted that D1 gave a NPS dated 23 December 2022 and was willing to become a prosecution witness and testify in court against D2. However, the Prosecution chose not to call D1 as a prosecution witness. D1 submitted that the useful information provided by D1 was the time of the burglary i.e. at 4:00 am on 26 June 2021 in paragraph 3 of his NPS. The information furnished by D1 was incorporated into the Admitted Facts for D2’s case.

22.It was trite and confirmed by various authorities that valuable assistance to the authorities was required to accord appropriate reduction in sentence (“evidence of some value to the police” in R v Lau Ying-wai, CACC 113/1986, 5 June 1986, unreported, “valuable assistance” in HKSAR v Y [2005] 3 HKC 337, “useful assistance to the authorities” in Z v HKSAR [2007] 2 HKC 265, 270, (2007) 10 HKCFAR 183).

23.In relation to it, it was explained in Z v HKSAR at paragraph 13 that “matters which are relevant include: the degree to which the defendant gave full and frank disclosure; the truth and reliability of the information; the range and seriousness of the criminal activities disclosed; the significance and useful of the information and the extent to which it could potentially assist or had actually assisted the authorities; whether the authorities were already in possession of the information and whether the defendant believed this to be the case; the extent of the defendant’s assistance, in particular, whether he was prepared to give evidence.”

24.With due respect, I did not agree with D1’s submissions that the time of the burglary was useful information. The time of the burglary could be readily ascertained by the CCTV of the Shop.

25.However, by a letter dated 8 March 2023, Mr. Tracy, Counsel for the Prosecution informed that the election not to call D1 as a witness was exclusive that of Counsel at the Department of Justice. There were concerns from himself and the police of whether the property dealt with by D2 was stolen property. The proposed evidence of D1 on this point “would have been of value, if not indispensable, in the situation where there were as yet no Admitted Facts”. Based on the submissions of Mr. Tracy, I considered that it would be appropriate to allow a reduction in sentence in the circumstances.

26.According to HKSAR v Y [2005] 3 HKC 337, the Court of Appeal stated at paragraph 9 that: “it is well established that those who enter a timely plea of guilty will receive a one-third discount and it is this which is topped up to 40 percent in the case of someone who has given valuable assistance.” In Z v HKSAR (2007) 10 HKCFAR 183 at paragraphs 23 and 24, the usual discount of 40% (including the one-third reduction for a guilty plea) was applied where the appellant had provided assistance to the authorities without testifying against those about whom they had provided information.

27.Various cases cited by D1 showed that the discount was basically in the range from 40% to 45% in cases where information of practical use was provided without testifying against other offenders: 40% to 45% in HKSAR v Ng Shek Yu, CACC178/2000, unreported 1 March 2001 at page 4; “slightly more than 40%” in HKSAR v Herrera Jhorman [2013] 1 HKC 119; 40% to 50% in HKSAR v Lo Sze-tung, Stephanie [2019] 1 HKC 309 [2018] HKCA 421 at paragraph 53; 33.3% to 40% in HKSAR v Dewi Ilmayanti and another, CACC370/2015, [2019] HKCA 794 at paragraph 74; and 40% in HKSAR v Ng Tsz Ching [2020] HKCFI 257).

28.Given the above and also that D1 indicated his guilty at the earliest available opportunity, I allow a 42% discount to the starting point. D1’s personal circumstances do not constitute any valid grounds for reduction in the sentence. The sentence after discount is of 19.14 months. I round it up to 19 months’ imprisonment and I so order.

D2’s Mitigation

29.D2 is currently 37. He was born in the United Kingdom and arrived in Hong Kong in 2000. He attended Sha Tin College in Hong Kong and attained his A-Levels. He had been married in 2010 but divorced in 2014. Currently, his family all live in the UK.

30.Prior to the offence, he worked as a construction laborer. He suffers from bipolar disorder. Between June 2020 and 2021, he received a Disability Allowance of approximately HK$8,000 per month.

31.He had been fined $5,000 for cultivation of cannabis plant in July 2004. In April 2011, he was sentenced to probation order for 12 months for possession of pipe, equipment fit and intended for smoking, injecting and inhaling dangerous drugs. He had been fined for HK$1,500 for shoplifting in October 2020. In July 2021, he was fined for $1,000 for gambling in a gambling establishment.

32.It was submitted by his counsel that he wholeheartedly accepts that he was wrong to go with D1 and Cloyd to find Howard, but he extracted himself from the situation before the Safe was touched by anyone, and gained nothing from his involvement.

33.He wrote a letter to the Court. He recited his case in the said letter and maintained that he did not have any dishonest intention. He stated that he was stupid to take D1 and Cloyd to Howard and had just followed blindly on what D1 had told him. He did not have any gain from his assistance. The present matter had been a wakeup call to him and that he needs to be more careful of the people he met. He has learned a grave lesson and asked for the Court’s leniency.

Discussion (D2)

34.The maximum sentence penalty for handling stolen goods is an imprisonment for 14 years.

35.In R v Chan Wing-kwan and another CACC121/1985, 28 August 1985, unreported at paragraph 46, it was held that: “An examination of a number of other cases of handling of stolen goods shows that the normal bracket of sentences runs between 2 and 4 years. Similarly, other decisions suggest that the handler of stolen goods can normally expect a lesser sentence than those who are convicted of the substantive offence of burglary of the goods which were subsequently handled.”

36.In R v Webbe and others [2001] EWCA Crim 1217, [2002] 1 Cr App R (S) 22, the English Court of Appeal set out nine aggravating factors as follows:

(1)  the closeness of the handler to the primary offence;

(2)  particular seriousness in the primary offence;

(3)  high value of the goods to the loser, including sentimental value;

(4)  the fact that the goods were the proceeds of a domestic burglary;

(5)  sophistication in relation to the handling;

(6)  a high level of profit made or expected by the handler;

(7)  the provision by the handler of a regular outlet for stolen goods;

(8)  threats of violence or abuse of power by the handler over others;

(9)  the commission of an offence while on bail.

37.The mitigating factors are low monetary value of the goods, the fact that the offence was a one-off offence, committed by an otherwise honest defendant, the fact that there is little or no benefit to the defendant, the fact of voluntary restitution to the victim, personal mitigation, ready co-operation with the police, previous conviction and timely plea of guilty (paragraphs 21 and 22).

38.In HKSAR v Xiao Wei [2003] 3 HKLRD 1063, the applicant had handled by pawning a Rolex watch valued at HK$11,000 stolen from a flat less than 6 hours ago. Although recognised by the Court of Appeal in Xiao Wei at paragraphs 10-12 that Webbe provides no assistance in themselves to Hong Kong’s sentencing tariffs, the Court of Appeal had considered various factors set out in Webbe and held that a starting point of 18 months was appropriate in that case.

39.The primary offence in the present case was non-domestic burglary. It was not the worst case of the kind. Except factor one (i.e. the closeness of the handler to the primary offence), I opined that there were no other aggravating factors existed in the present case. However, it should be noted that the handling was close to the primary offence both in terms of time and geographical location. The burglary took place at about 4:00am on 26 June 2021 whereas D2 left the Guesthouse at about 5:00am. Both the Shop, the Guesthouse and the Subway were located in Causeway Bay Area. In my opinion, D2’s handling provided an opportune and convenient assistance to D1 and Cloyd in the burglary.

40.As to the mitigating factors, I considered that:

(1)  the monetary value of the Safe was $1,600 and was relatively low. The amount was much lower than the stolen property in Xiao Wei. There was no sentimental value involved. Conversely, the fact that the stolen property was a safe implicated that there might be valuable properties contained inside. I do not consider that the monetary value could be a strong mitigating factor;

(2)  there was no evidence other than the fact that the offence was a one-off offence;

(3)  it was not disputed that D2 was not involved in the burglary;

(4)  there was no evidence that D2 received any benefit from the burglary and that the Safe was open before D2;

(5)  D2 had been cooperative in the police’s investigation by providing information of D1 and Howard and raised no objection to a house search. He also provided cautioned statements to the Police;

(6)  there was no previous conviction of handling stolen goods though a conviction of dishonesty i.e. shoplifting in 2020 was recorded which resulted in a fine.

41.It was D2’s case that he refused to have the Safe being put in his home and refused to lend tools to D1.

42.After taking into account of all the factors above, I considered that a starting point of 12 months’ imprisonment is appropriate. D2’s personal factors do not constitute any valid grounds for reduction of sentence. I therefore sentence him to 12 months’ imprisonment.