HKSAR v. Duque Amaya Carlos Augusto

DCCC28/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 28 OF 2010

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Reasons for Sentence

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1.The defendant pleaded guilty to two counts of burglary. Here are the reasons for sentence.

The Prosecution’s case

1st Charge

2.The premises of the first burglary was located at Room 902, Keen Hung Commercial Building in Wanchai (Premises A). At about 1.30 pm on 31 October 2009, the neighbour of Premises A found prising marks on the wooden door of the premises. A report was made to the police. The occupant of Premises A found out that a Panasonic digital camera was missing.

2nd Charge

3.The premises of the second burglary (Premises B) was situated at Room 802, 8th Floor, Chinachem Johnston Plaza in Wanchai. At about 2.20 pm on 31 October 2009, the alarm bell was triggered, and the caretaker of the building and another person surnamed Tam went to the 8th Floor to investigate. They heard some noises inside Premises B and they pressed the door bell. Shortly afterwards, the defendant, who was carrying a black rucksack, dashed out from Premises B. They chased the defendant, who was seen discarding the rucksack on the 7th Floor. The defendant was intercepted on the 1st Floor. The defendant attempted to escape but was eventually subdued and arrested.

4.Upon search, the items as particularised in the 2nd charge were recovered from the rubbish bin in the toilet. The digital camera belonging to the victim of the first burglary was also located in the rucksack.

5.Under caution, the defendant admitted that the rucksack that was seized at the scene belonged to him.

Mitigation

6.The defendant was born in Columbia and had a clear record both in Hong Kong and in his country. He came to Hong Kong on 24 October 2009 and stayed in a boarding house in Tsim Sha Tsui. He was a merchant travelling amongst Asian cities to purchase goods for resale in Columbia. He is unmarried but has two grown up children aged 26 and 18. He was in financial problem when in Hong Kong. It was submitted that this was not a sophisticated and well-planned burglaries. There was no accomplice and no loss suffered by the two victims as all the lost property was recovered. The defendant, being a foreigner in this country, will be separated from his family in Columbia. The defendant also submitted a mitigation letter.

Sentence

7.The defendant had a clear record in Hong Kong. He came to Hong Kong to do business. The prosecution suggested that the various foreign currencies as particularised in Charge 2 amounted to HK$20,200-odd.

8.When asked, counsel for the defendant accepted that the defendant was using a long and big screwdriver to prise open the wooden door of Premises A. The defendant was equipped to burgle at the material time.

9.The defendant committed two burglaries on the same day. The burglaries were perpetrated in two different premises which are non-domestic premises. The defendant succeeded in stealing properties from these premises even though eventually all were recovered and consequently the victims did not suffer any loss. A long and big screwdriver was used, at least in committing the first burglary. The defendant claimed that the screwdriver, apparently a brand new one, was given to him by his friend. In my view, the defendant was fortunate in a sense as he was not charged with the offences of aggravated burglary in which the maximum sentence is life imprisonment.

10.The sentencing guideline promulgated by the Court of Appeal is clear. For non-domestic burglaries, the usual starting point is 2½ years. I see no reason to depart from the guideline.

11.The most important mitigating factor is the defendant’s guilty plea which would allow him to have a one-third reduction in sentence. I accept that there was no loss suffered by the victims and that the burglaries were not sophisticated, without much planning. Accordingly, for Charge 1, I would adopt a starting point of 2½ years and reduce the sentence to 20 months. For Charge 2, I would adopt the same starting point and reduce the sentence to 20 months.

12.I take into account of the totality principle and the personal background of the defendant and I am prepared to take a lenient stance. I order that 3 months of the second sentence be served consecutively to the first sentence. As such, the total imprisonment term of the defendant is 23 months.