HKSAR v. Catano Ramirez Never Daniel

DCCC421/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 421 OF 2011

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Reasons for Sentence

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1.Defendant pleaded guilty to two counts of burglary and he was convicted accordingly.

Brief facts

2.On 12 August 2010, the occupants of the premises situated at Ground Floor, Lane 1, No. 21 Ha Pak Tsuen, Sheung Shui Wai, Sheung Shui (Premises 1) discovered that the glass door of the premises was opened with a prise mark on the lock.  There were signs of ransacking in the premises. The victim discovered that one bracelet, one necklace and two watches worth approximately $22,000 were gone missing (Charge 1).

3.On 13 November 2010, the occupants of the unit at Ground Floor, No. 38 Tsang Tai Uk New Village, Shatin (Premises 2) found that the window in the bedroom had been prised open.  There were signs of ransacking.  The victim found that one rucksack, cash in the sum of HK$6,000 and six watches were stolen.  The total value of the stolen property was about HK$91,000 (Charge 2).

4.The defendant’s fingerprints were found on the surface of two boxes placed inside the bedroom of Premises 1.  On the other hand, the defendant’s fingerprints were lifted from the window grille of the bedroom in Premises 2.  The defendant was arrested in February 2011.  None of the stolen property was recovered.   

Mitigation

5.The defendant is now 27 years old and a Columbian.  He had a clear record when committing the present offences, even though eventually the defendant was convicted of the offence of theft in February 2011.  His mother is 70 years old and is suffering from serious infection in her legs. 

6.His father deserted the family when the defendant was 6 months old.  The defendant came to Hong Kong in September 2009 and later cohabited with a girlfriend in Hong Kong.  In August 2010, his girlfriend ended the relationship and that caused the defendant considerable financial difficulties. 

7.The defendant was not a professional burglar and not part of a gang.  He made sure the occupants left the premises before he burgled.  The defendant guilty to the charges at the first opportunity.  He was remorseful.   The defence also referred to the case of AG v Lo Ching Fai, CAAR12/1995 on multiple burglaries.

8.Upon enquiry, the Court was informed that the defendant at first came to Hong Kong on 19 September 2009 and he left Hong Kong via Lo Wu checkpoint on 17 December 2009.  The defendant re-entered Hong Kong via Lok Ma Chau Checkpoint on 22 December 2009 and was allowed to stay in Hong Kong as a visitor until 22 March 2010.

Sentence

9.The defendant came to Hong Kong as a visitor and apparently he knew the way to further extend his stay in Hong Kong.  When he committed the present burglary offences, he had overstayed in Hong Kong already. 

10.He committed the two burglaries in 2010 and then a shoplifting offence in February 2011 of which he was convicted and got a fine.  The defendant was sentenced to one month but suspended for 18 months for the offence of a breach of condition of stay.  By then, the police were able to obtain the fingerprints of the defendant and further enquiry led to the arrest of the defendant for the present offences.  The door lock or the window grille of the premises had been prised open which indicated that certain tools or equipment were used for the entry.     

11.In my judgment, the defendant is wise to plead guilty to the charges for which his sentence will be reduced by one-third, otherwise he will certainly receive lengthy sentence.  His plea is the only substantial mitigation.  The normal starting point for domestic burglary is one of 3 years. 

12.Accordingly, for Charge 1, I start the sentence with 3 years and reduced it to 2 years.   As regards the 2nd charge, I also adopt 3 years as the starting point and reduce it to 2.

13.I have to consider the totality principle and taking the circumstances of the case into account, including the value of the stolen property which was not recovered.

14.I order that 3 months of the second sentence be served consecutively to the first sentence.  That means I sentence the defendant to a total of 2 years and 3 months.