HKSAR v. Reyes Evelyn Adelantar

DCCC233/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 233 OF 2011

____________

________________________

Reasons for Sentence

________________________

Introduction

1.The defendant (D), Reyes Evelyn Adelantar, was charged with two counts of offence-charge 1 of burglary and charge 2 of overstaying.  She pleaded not guilty to burglary but guilty to overstaying.  Following a trial, the D was convicted of attempted burglary.

2.The facts of the case are that the D was first seen loitering outside the main gate of her former employer’s house in Fairview Park, Yuen Long, early in the morning (5:25 a.m.) on the day in question (31 December 2010) and a short while later, she was already inside the house area - in the garden only a few feet away from the house.  At that time, the D’s ex-employer, Mr. Chen, who was out taking his usual morning walk with his maid was informed that his ex-maid was in his house.  They immediately went back home.  The next thing happened was that the D was already surrounded by a group of security guards in the street near where Mr. Chen lived.  Police were called and the D was arrested.  Further enquiries revealed that she had been overstaying for 5 months since her contract with Mr. Chen ended on 31 July 2010.  She was in law only entitled to stay for two weeks after her employment contract came to an end, but she chose to stay behind until the day of her arrest (31 December 2010).

Mitigation

3.The D, aged 57, is a person of previous good character.  She was a married woman but separated from her husband, she raised five children single-handedly. She first worked as domestic helper in Taiwan in 1994, and later came to Hong Kong to work for Mr. Chen for a total of 6 contracts.

4.The court was told that she had a much more intimate relationship with Mr. Chen than that of an employer-employee relationship - in fact she was his mistress.  When Mr. Chen had problem with his leg in 2008, their relationship turned sour.

5.Defence counsel stressed that there was no aggravation in the case - nothing was stolen, no breaking-in tools used and it was not pre-planned.

6.As far as overstaying is concerned, counsel said that after her relationship with Mr. Chen ended, she became devastated and decided to stay but it was difficult to find job.

Reasons

7.The claim of the D being a mistress of her employer was only put forward in mitigation, but was never put to Mr. Chen at trial, and I have no way to ascertain the genuineness of such claim at this stage.  This is unfair but in any event it has no bearing on sentence.

8.There are sentencing guidelines for the offence of burglary - for domestic premises, the term for consideration is one of 3 years in the absence of aggravating features.

9.Section 159J(1)(b) of the Crimes Ordinance provides, “A person guilty by virtue of section 159G of attempting to commit an offence shall- if the offence attempted is indictable ……, be liable on conviction on indictment to any penalty to which he would have been liable on conviction on indictment of that offence.”  In other words, the guidelines for burglary apply to the case of attempted burglary.

10.In Khan Asif CACC 83/2009, the appellant, with the help of an accomplice, climbed onto the windowsill of a rice shop and popped his head into the window in the middle of the night, was convicted after trial of burglary and sentenced to a term of 30 months.  In allowing the appeal on sentence (30 months reduced to 18 months), the appellate court was of the view that the sentence should proceed on the basis that there was minimal entry into the premises for the purpose of stealing therein if there was anything worth stealing and that it was decided then to abandon the escapade rather than on the basis that but for the advent of the passerby in the street, they would have pursued their entry into the premises and have taken away goods.

11.The Court of Appeal in Asif made it clear that the departure from the usual guidelines was due to somewhat unusual facts of the case, and it was not to be taken as an approach to be adopted simply because in a particular event goods are not in fact stolen.

12.In the instant case, however, the prosecution could only show that the D had gained the garden albeit with the intent to steal from the house.  In fact there was nothing stolen from the house.  Given the prosecution case as it was, it is not clear why she left the garden and not to pursue her entry into the house to take away valuables.  There may well exist the possibility as mentioned by the appellate court in the case of Asif that warrants a lenient view to be taken of the situation.

13.Given the fact that she had yet entered the house to steal, all that she had done was coming onto the garden, I am prepared to treat the facts of the instant case as something unusual and to take a more lenient view of the matter.  Also taking into account are her rather lengthy employment here as a domestic helper and her clean record, for the offence of attempted burglary, I sentence her to a term of 12 months. Insofar as overstaying is concerned, taking into account the length of time she had overstayed (5 months), I take 3 weeks as starting point, and reduce it to 2 weeks to reflect her plea.

14.In the case of illegal immigrants who come to Hong Kong to commit further offences, the appellate court always says that the term for the immigration offence should be made consecutive to the other offences subject of course to the totality principle.  In the instant case, the D is not an illegal immigrant, but her presence here at the time of committing the offence of attempted burglary was illegal.  Having considered the matter, I order that both terms to run consecutively to each other, the total term is one of one year and two weeks.