HKSAR v. Dela Rosa Arnulfo Siblang

DCCC 1206/2023

[2024] HKDC 1868

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1206 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant has pleaded guilty to a single charge of attempted burglary, an offence which occurred on 9 August 2023. The Admitted Facts show that the offence was committed at a premises in Mei King Mansion in Hung Hom and the facts show that on 9 August 2023 at about 8.13 pm, the defendant was intercepted at Mei King Mansion, No 2 Mei King Street, because he was carrying a black bag. The police officer who conducted a search found that a bolt cutter was inside the black bag. The defendant admitted straightaway to the police that he wanted to steal something in a room and took the police officer to the premises concerned which was a flat inside the building on the 6^th floor. It was seen that there were two iron chains on the iron gate of the flat, one of which had been cut in the middle and the other one which bore a cut mark, and defendant confirmed that he had cut that chain.

2.A CCTV footage of the corridor of the premises showed further what the defendant had done.  It showed that he in fact entered the corridor with another person and they had walked towards the flat.  The defendant had taken the bolt cutter and cut something with the bolt cutter at the bottom of the iron gate of the flat.  The defendant had then left with the bolt cutter.

3.In his cautioned video interview, the defendant provided further information about what had happened.  He said he had been given an instruction by a man called “Manu” to cut the iron chain and then Manu would enter the flat.  He had followed the instruction.  He had been told that he could receive not less than $10,000 if he cut the chain as Manu would be able to take items worth over $10,000 from the flat.  Clearly after the chain had been cut the defendant had left but there is no suggestion in the Admitted Facts that the premises was entered by anyone.

4.The defendant’s antecedent statement shows him to be a man of 46, I am told he is actually 48 years old, born and educated up to secondary school level in the Philippines.  He has a number of previous convictions, totally 10 in recorded, some four for burglary.  In his most recent conviction of burglary which was in 2021, he was also in possession of dangerous drugs.  I am told the total overall sentence was 2½ years.  He was released from that on 20 June 2023 and committed this offence of course in August of the same year.

5.As far as mitigation is concerned, I am told the defendant in fact came to Hong Kong in 2017 or 18 to join his mother who is a tenant of a public housing unit in Tuen Mun.  He is married in 1997 but divorced in 2006.  The defendant has two children aged 18 and 10 respectively.  Unfortunately he is no longer in contact with them.  The defendant has worked as a cleaner for around one year.

6.The defendant’s previous convictions do show that he has had involvement with dangerous drugs as well in the past.

7.As far as the sentencing considerations are concerned, the court must first determine whether there is a guideline sentence for this particular offence and then consider whether that should be enhanced due to any aggravating factors and then finally when a starting point for sentence has been reached to take into account any mitigating factors.  The strongest mitigating factor in this case is the defendant’s plea of guilty and his admission of the offence which will entitle him to a full one-third discount from any starting point of sentence determined by the court.

8.It is common ground and trite law that the starting point for sentence in respect of a domestic premises burglary is one of 3 years’ imprisonment and that applies to a person of clear record who is convicted after trial.  This is an attempted burglary, however, the starting point for sentence is the same on an attempt as for the full offence.

9.There are a number of possible aggravating factors in respect of this offence.  Firstly, there are the defendant’s previous convictions of which there are four dating up to 2021 and also the close proximity of this offence to the last offence of burglary for which the defendant was convicted.  An enhancement of sentence is permitted because the previous sentencing has shown that it is possible that the deterrent effect of that sentencing has not made itself clear to the defendant so it is permitted for the court to enhance the sentence in these circumstances.

10.The starting point for sentence of 36 months of course applies to what we might call a standard burglary.  Another aggravating factor which may well exist in this case are the defendant’s use of a tool, namely the bolt cutter, and also the fact that the defendant did not commit this offence alone, it was committed in the company of other people, it is a form of joint enterprise. These are both aggravating factors.  The court must determine what addition to the starting point it should add as a result of these aggravating factors bearing in mind that the overall sentence being one which is fair and just and reflects the actual offending of the defendant which in this case is simply to use the bolt cutter to cut a chain with no evidence of entering into the actual premises.

11.My approach to sentencing will be as follows:

I will take the initial starting point of one of 36 months having regard to the fact that this is an attempt at a domestic premises burglary. I will then add a further 6 months enhancement of sentence to reflect the defendant’s previous convictions and the failure of deterrence in earlier sentencing. As far as the other factors which is the fact that this is a joint enterprise and the defendants used a tool, namely a bolt cutter in respect of this offence, I will add a further 3 months. This leads to an overall starting point for sentence of 45 months.

12.The defendant is of course entitled, as I said, to a one-third discount from that figure which leads to a final sentence in respect of this offence of 30 months’ imprisonment.  That will be the sentence of the court, 30 months’ imprisonment.