HKSAR v. Jengo Pickett Raphael

DCCC1201/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1201 OF 2009

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Reasons for Sentence

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1.The starting point of Burglary in respect of non-domestic premises is 30 months - 2½ years. 

2.The facts of the crime you have committed is of the usual type, nothing more serious nor less serious so the starting point applies.  No particularly aggravating feature; no particularly mitigating circumstances; so I will adopt a starting point of 30 months for each charge. .

3.The first part of remission or reduction of sentence, you are entitled, and for which you do not have to thank me, because I may not be that lenient if I had a free hand because the evidence against you was strong, the remission I refer to is your guilty pleas.  I am bound, I repeat, I am bound to give you one-third remission.  That means the sentence for each charge will be reduced from 20 months on this mitigating factor alone and there are other mitigating factors.

4.I notice your frank admission to the police and you fully cooperated with the police.  While the police cannot encourage you to cooperate with them but I think the court can, it is a simple logic, if you cooperate with the court by pleading guilty, you get one-third remission, which is quite substantial.  I do not see why you would not get further remission because you admitted to the police and you cooperated with the police.  If I do not take that into account it will not make sense.

5.If another - suppose you have an accomplice, he does not cooperate with the police, he tried very hard to mislead the police and wasted a lot of investigation time of the police, but when he came to court he pleaded guilty.  Nobody will think it will be fair if that person, that cunning co-defendant, should receive the same sentence as you. 

6.So I believe some remission has to be made with regard to your cooperation with the police, but in your particular case, the remission must be only something of a token because you have already been given one-third remission.  Secondly, the evidence against you is strong.  The trouble you have saved the police in further investigating into the crime is quite limited.  Putting it in simple terms you did not save too much of the police’s time.  I repeat again that you have to be given token remission. 

7.The second mitigating factor I have to take into account is your own personal circumstances.  You have a clear record but it does not carry much weight in reducing your sentence.  Nevertheless, I have to consider that.  But, more importantly, is your status of refugee in Hong Kong. 

8.I am not here to sentence you for coming here to Hong Kong but once in Hong Kong I have to take into consideration your difficult personal circumstances.  In a sense you were luckier then than now because now you are not even allowed to work.  I have no idea what the government will do about how to assist you in spending your time.  If you are not allowed to work, you are no less than a prisoner except that you have more space to travel but you do not have the means to travel far, you do not have the money, you cannot work.  You only travel far enough to get your food.  You have my sympathy, a person in your circumstances.

9.In your case, of course, you can work legally but with limited knowledge of English, without ability to communicate in Punti it will be difficult for you to find work, which I accept.  A human being, as I have been told, are economic animals, they have to be doing some economic activity, legal or illegal.  If they are not allowed to do legal activity, they will think about illegal activity. 

10.But the question about you, is totally immoral.  It is not a question of whether you are allowed to do it.  You are not allowed to do it.  It is not like doing an honest day’s work without the government permission that will be a different matter.  You are doing something which will not be allowed anywhere in the world, not even in your home country.  But I do appreciate the difficulties you had, you had no money, you had no work, you had nothing else to do so to speak.  I cannot imagine what activity you can take part. 

11.All this I will take into account.  The last factor is your prison life will not be as easy as ordinary prisoner because of your language barrier.  So for each charge I give you a further four months’ discount.  That will be 16 months for each charge. 

12.Your counsel has pointed out, quite correctly, that I should consider at least a certain part of your sentence should run concurrently.  Because the two offences are committed within the vicinity of weeks and in the same building, I am prepared to look at it in the light of totality.  I will direct that 8 months of the 2nd Charge to run consecutive to the 1st Charge so altogether 24 months in total.