HKSAR v. Cornelio Mishell Paccarangan

DCCC 1164/2023

[2024] HKDC 1296

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1164 OF 2023

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REASONS FOR SENTENCE

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1.Defendant was charged with three counts of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210. Defendant pleaded guilty to all the charges.

SUMMARY OF FACTS

2.Ms Lau resided at Flats A & B, 7^th Floor, Viking Court, Nos 165-166 Connaught Road West, Sai Ying Pun, Hong Kong (“Flat 7AB”)  with her husband and daughter.  Flat 7AB is a combined flat which belongs to Ms Lau’s mother.  Ms Lau’s mother resided at 2^nd Floor, Ming Hing Building, Des Voeux Road West 268.

3.The Defendant was a domestic helper.  Since 2019, the Defendant was employed by the mother of Ms Lau.  Since 2021, the Defendant visited Ms Lau’s residence, ie Flat 7AB, to take care of Ms Lau’s daughter every Monday to Saturday from 0745 to 2030 hours and went back to the residence of the mother of Ms Lau to rest at night.  On Sundays, the Defendant was on leave.  The Defendant had the key to Flat 7AB’s gate and the passcode of the lobby of Flat 7AB, Viking Court.  However, Ms Lau had instructed the Defendant that, unless the Defendant had Ms Lau’s approval, the Defendant was not allowed to visit Flat 7AB without reasons.

Charge 1 Burglary on 8 June 2023

4.On 8 June 2023, the Defendant having entered as a trespasser part of a building known as Flat 7AB, stole therein one necklace, a gold necklace with a heart-shaped pendant with “HAPPY” written thereon (the “HAPPY” necklace).  The Defendant stole and pawned the “HAPPY” necklace on the same day.  The Defendant pawned the “HAPPY” necklace from Maxi-Cash Pawn Shop for HK$12,500.

Charge 2 Burglary on 6 July 2023

5.On 6 July 2023, the Defendant having entered as a trespasser part of a building known as Flat 7AB, stole therein one wrist chain, a bracelet with gold pendants (“the Bracelet”).  The Defendant stole and pawned the Bracelet on the same day.  The Defendant pawned the Bracelet at the Shing Fung Pawn Shop for HK$1,600.

Charge 3 Burglary on 9 July 2023

6.On 9 July 2023, the Defendant having entered as a trespasser part of a building known as Flat 7AB, stole therein cash of about $9,000 Hong Kong currency, cash of $2,300 Taiwanese currency, cash of 490,000 Vietnam Dong, cash of ₩381,000 South Korean Won, cash of $104 Singapore currency, cash of ฿1,400 Thailand Baht (“the Foreign Currencies”), one ornament (Hello Kitty Ornament), one chain and two CCTV cameras.

7.On 9 July 2023, the Defendant was on leave.  At around 4 pm, the Defendant went to the house of her employer, ie mother of Ms Lau, to change clothes so that she would not be recognised.  After getting changed, the Defendant went to Flat 7AB.  She entered the building using the passcode.  She took the lift to 9^th Floor, and went down to 7^th Floor through the stairs.  The Defendant then entered Flat 7AB.  She used a curtain to cover herself, and took out the CCTV cameras.  The Defendant stole the Foreign Currencies, the Hello Kitty Ornament, one chain and two CCTV cameras. At around 2000 hours on the same day, the Defendant returned to the residence of Ms Lau’s mother.

8.At around 2100 hours on the same day, Ms Lau, her husband and daughter returned to Flat 7AB.  The gate of Flat 7AB was damaged, and the lock was loosened.  The wooden door was half-opened, and the inside of Flat 7AB showed signs of ransacking.  The following items were missing from Flat 7AB:

(a)  Around HK$2,000 red packet money in the wardrobe inside the room;

(b)  A pink bag containing foreign currencies totaling around HK$5,000 in the wardrobe inside the room;

(c)  Around HK$7,000 red packet money from the floor cabinet inside the master room;

(d)  3 gold chains / necklace (around HK$12,000 in total)  from the floor cabinet;

(e)  A Hello Kitty golden ornament (Hello Kitty Ornament)  (around HK$12,100); and

(f)  2 CCTV cameras (around HK$800 in total).

9.The repair fee for the wooden door and gate was around HK$700.  Some of the missing items were subsequently recovered.

10.CCTVs situated in the living room of Flat 7AB, Ming Hing Building and a Mc Donald’s in Queen’s Road West captured the Defendant’s act.

Inquiry and Arrest

11.At 2145 hours on 9 July 2023, police officers including PC 27387 arrived at the residence of Ms Lau’s mother.  Upon being asked where she was at around 1615 hours on 9 July 2023, the Defendant answered, “Sir, I remember that I changing the clothes then I go to my boss home at Connaught Road.”  Upon being asked why she went there, the Defendant answered, “Sir, because lack of money.”  Upon being asked what the Defendant obtained from Flat 7AB, the Defendant answered, “Sir, I get some currency and some gold from my boss home.”

12.At 2300 hours on the same day, the Defendant was arrested for “burglary”.  Upon arrest, the Defendant stated, “Sorry Sir, it is me to burglar my boss home, all the things pass to my friend.”

13.At 0140 hours on 10 July 2023, a body search on the Defendant was conducted.  Upon examination, the Foreign currencies and the Hello Kitty Ornament were inside the Defendant's brassiere.  Upon further body search, inter alia, a pawn receipt from one “Shing Fung Pawn Shop” dated 6 July 2023 were found on the Defendant.

CRIMINAL RECORD

14.The Defendant has a clear record.

MITIGATION

15.Defendant is aged 37.  She is a native of the Philippines and received education to college level.  She is married with one 12 years old child.  She was employed in Hong Kong as a domestic helper from 2019 until the date of her arrest.

16.Mr Donald, on the Defendant’s behalf, submitted that the Defendant pleaded guilty at the first opportunity and has no previous record.  She would be deported upon released of the present offence, as such, there would be no risk of re-offending.

17.It was submitted that the normal sentence for committing a burglary of a domestic premises, where there is no aggravating or mitigating factors, is one of 3 years.  In this case it is accepted that an aggravating factor to the offending was a breach of trust.

18.It was further submitted the offending was unsophisticated and easily detected; there was no great planning involved.  A considerable amount of the stolen property has been recovered.

SENTENCE

19.There is a well settled sentencing guideline for burglary of domestic premises.  According to the guideline, the starting point for a single burglary domestic premises where there are no aggravating or mitigating features is 3 years’ (36 months)  imprisonment (AG v Lui Kam Chi [1993] 1 HKC 215)

20.According to the facts admitted, the valuable property was targeted and the value for charge 1 was HK$12,500, for charge 2 HK$1,600 and charge 3 was HK$24,800, totaling HK$38,900[1]. The facts revealed the gate of Flat 7AB was damaged, and the lock was loosened and the inside of Flat 7AB showed signs of ransacking.  The damage cost was HK$700.  The Defendant burgled the same residence on 3 occasions.

21.In HKSAR v Cheng Wai Kai CACC 338&339/2007 (para 15)[2], 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.

22.It was agreed by the defence it is a breach of trust case which is an aggravating factor.

23.I have considered the facts of the case including the value and nature of the property stolen, the mitigation submitted by Mr Donald on behalf of the Defendant and the background of the Defendant.  I adopt a starting point of 3 years’ (36 months)  imprisonment for each of the charge.  I enhance 3 months for the aggravating factor, which is breach of trust.  As such, the starting point for the sentence of each charge is 39 months’ imprisonment.  The Defendant pleaded guilty, the sentence for each charge is, therefore, 26 months’ imprisonment.

Totality

24.Taking into account all the circumstances of the three burglaries and the totality principle, I am satisfied that a total sentence to be served by the Defendant of 32 months’ imprisonment is appropriate, and reflects the Defendant’s criminality on the three charges.  I order that 3 months each of charges 2 and 3 to run consecutively with charge 1 and the remainder to run concurrently.

CONCLUSION

25.The sentence for the case is 32 months’ imprisonment.