HKSAR v. Escudero Alberto Pinon

DCCC 478/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 478 OF 2013

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Reasons for Sentence

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1.Defendant pleads guilty to Charges 1 to 8. Charge 1 is breach of deportation order that took place between 15 February 2012 and 17 February 2012. Charge 2 is attempted burglary occurring on 10 December 2012 at the Mira Hotel. Charge 3 is another attempted burglary, also occurring on 10 December 2012, again at the Mira Hotel. Charge 4 is one of burglary occurring on 10 December 2012 at the Mira Hotel. Charge 5 is a burglary charge that took place on the 11th day of December 2012 at the Park Hotel. Charge 6 and Charge 7 are both attempted burglaries that took place on 14 December 2012 at the Park Hotel. Charge 8 is breach of deportation occurring on 14 December 2012.

2.Defendant is a Filipino.  In 1994 he had been to Hong Kong.  At that time he was named Lim Reynaldo U.  A deportation order dated 7 April 1994 was issued against him by the Hong Kong Government.  The order was explained to him.  He knew he was prohibited from entering Hong Kong again.  On 11 May 1994 he was deported from Hong Kong back to Manila.

3.On 15 February 2012, defendant came to Hong Kong in the name of Escudero Alberto Pinon on a Philippine passport.  He left Hong Kong on 17 February 2012 (Charge 1).  He came to Hong Kong again on 7 December 2012. He stayed in this place until he was caught on 14 December 2012 (Charge 8).

4.Sometime after 8 pm on 10 December 2012, defendant went to the 7th Floor of the Mira Hotel in Tsim Sha Tsui.  He attempted to open the doors of Room 754 and 761 in order to enter with intent to steal therein (Charge 2 and Charge 3 respectively).  Defendant could not enter those two rooms, but he managed to enter another room, Room 738.  In that room, he took away a briefcase containing a wallet, a bag and some souvenirs belonging to a tourist couple who at that time were not inside the room.  The defendant also stole a speaker belonging to the hotel (Charge 4). 

5.The total value of the stolen properties was about HK$18,000.

6.On the next day, ie 11 December 2012, sometime after 8 pm, defendant entered Room 801 of the Park Hotel in Tsim Sha Tsui.  He stole a handbag, five pairs of shoes, a jacket and an iPad.  Those things belonged to a female tourist who at that time was not in the room (Charge 5). 

7.The value of the stolen properties was around HK$33,000.

8.Another three days later, defendant went to the 5th Floor of the same hotel, ie the Park Hotel, in Tsim Sha Tsui.  It was around 7 pm.  Defendant tried to open the doors of Room 527 and 532 in order to enter with intent to steal therein.  He could not enter those two rooms (Charge 6 and Charge 7 respectively).

9.His acts however caught the attention of a security guard who was monitoring the CCTV.  The security manager went to stop defendant when defendant tried to leave the lift lobby.  Defendant made an excuse that he was looking for a friend in Room 506 of the hotel, but there was no such person residing there.

10.Defendant was arrested by police.  In a subsequent interview, defendant admitted Charges 4, 5, 6 and 7.  He also admitted he was the deportee in the 1994 deportation order by the name of Lim Reynaldo U.  Defendant said he could not remember the name of Trias Roberto. 

11.In 1995 defendant was in Hong Kong.  He was then convicted of a burglary offence by that name, ie Trias Roberto.

12.Defendant is now aged 60.  He is a Filipino but he has convictions in Hong Kong on two occasions dated 1991 and 1995.  Among the 27 charges he was convicted of in 1991, there were 7 burglary charges. Prosecutor says those 7 burglary offences took place between January and April 1991 in several hotels in Hong Kong.  Defence counsel does not dispute this, he only says those offences were stale now and that defendant had been punished for those misdeeds.

13.Counsel says defendant’s real name is Lim Reynaldo U.  He is now 60 years old.  He works as a driver in the Philippines but has retired since 2011.  He lives with his family there.  His children are all grown up.

14.Counsel says defendant came to Hong Kong via Macau in February 2012 for the purpose of sightseeing.  Defendant only stayed in Hong Kong for 3 days and left on 17 February 2012. 

15.Defendant originally told counsel that he came to Hong Kong again in December 2012 to buy Christmas presents for his family, but later he admits through what he writes in his mitigation letter that he actually came to Hong Kong to steal because his granddaughter needed money for a stomach operation.  But no details are given of that said operation or the amount of money required for that purpose.

16.Defence counsel first submits a set of seven cases relating to sentence in burglary cases.  They are not quite worth mentioning.  On the other hand, defence counsel agrees with what the Court of Appeal says in the case cited by prosecution, the case of Ng Wai Hing CACC621/2002.  It is a case of hotel burglaries.  The Court of Appeal said this in paragraphs 29 and 30:

“It may not be too helpful to decide if a hotel room should be categorized as domestic or non-domestic for sentencing purpose. A hotel is in a category of its own. But the aggravating factor involved in burglary of domestic premises is certainly present in the case of burglary of a hotel room.

Indeed, a hotel is meant for visitors to whom the trauma of being burgled may well in some case be more profound and intense, particularly if passports, credit cards and spending money or the like are stolen. The image of Hong Kong in the international community will also be significantly affected by such crime.”

17.The Court of Appeal further says in paragraph 31:

“We are of the view that burglary of a hotel room should at least attract the same sentence as that of domestic premises.”

18.The Court of Appeal in that case says the sentencing judge was right in adopting a starting point of 3 years for a hotel burglary charge. 

19.The Court of Appeal in the case of Ng Wai Hing in effect says the starting point for a hotel burglary charge should be at least 3 years.  It can be more than that depending on the circumstances.

20.Defendant is not a first offender.  In fact, in 1991, he was convicted of 7 counts of hotel burglaries.  Defence counsel says if this court should consider defendant as a persistent offender in such light, the enhancement on this factor alone should be no more than 6 months of imprisonment.  Counsel submits another set of cases, altogether five, to support his argument.  One of those cases is the case of Chan Pui Chi CACC706/1997.  I need not repeat any citation from those cases. 

21.Although defendant’s similar convictions were dated some years ago, ie 1991, the fact remains that defendant came back to Hong Kong after two decades to commit several similar hotel burglaries as he did in 1991.  Defendant is indeed a persistent offender of such kind.  There should be enhancement in accordance with the principle laid down in the case of Chan Pui Chi.  I agree with defence counsel that on this factor alone, the enhancement should not be excessive.  I consider the enhancement should be one of 6 months’ imprisonment on top of the original starting point of 3 years’ imprisonment.

22.However, there is another aggravating factor in this case.  Defendant came in December 2012 for the purpose of stealing in Hong Kong hotels.  Defence counsel says this court need not give too much consideration to this aggravating factor because after all defendant would be sentenced for the two deportation order offences and the court would have to mete out the right final sentence at the end.

23.Of course, the court would have to consider the question of totality and at the end of the day mete out the right sentence for defendant for all these 8 charges, but still the court is under a duty to determine the right sentence for each charge.

24.For the aggravating factor of defendant’s coming to Hong Kong to steal, I enhance the sentence of the burglary or attempted burglary charges each by another 3 months.  Thus, for each of Charges 2 to 7, I adopt 3 years and 9 months’ imprisonment as the final starting point. Defendant pleads guilty, he is entitled to one-third discount.  So on each of Charges 2 to 7, defendant is sentenced to 30 months of imprisonment.

25.As to the two deportation order offences, Charge 1 is a first-time breach; Charge 8 is a second-time breach.  Prosecutor cites the case of Cortez Emily Bisoy HCMA457/2002 where Deputy High Court Judge McMahon after reviewing a number of relevant cases said 18 months of imprisonment after plea is right for a first offender.  Defence counsel does not seek to dispute with that.  I also think that is the right sentence to make in the present case on Charge 1.  Therefore, I adopt 27 months’ imprisonment as the starting point for Charge 1.  I give defendant one-third discount for his plea of guilty.  I sentence him to 18 months’ imprisonment on Charge 1. 

26.Charge 8 is a second-time breach of the same deportation order.  The Court of Appeal says in the case of Pham Van Tuan CACC272/2010 and also in the case of Tran Viet Thanh CACC54/2011 (heard together with CACC221/2011 and HCMA360/2011) that a sentence of 21 months’ imprisonment after plea for a second-time of such breach is right.  I also consider that is the right thing to do in the present case concerning Charge 8.  So for that charge, I adopt 30½ months’ imprisonment as the starting point.  I give defendant one-third discount for his plea of guilty.  I sentence him to 21 months’ imprisonment on Charge 8.

27.Charges 2 to 4 occurred around the same time at the same floor of the same hotel, ie the Mira Hotel.  These three offences should be considered more or less as one incident.  Thus the three terms of imprisonment should run concurrently. 

28.Charge 5 occurred on the next day in another hotel, ie the Park Hotel.  Thus it was a separate offence from those in Charges 2 to 4. 

29.Charges 6 and 7 also occurred in the Park Hotel, but these two offences took place three days later, so it was another separate commission of crime.  The two terms of imprisonment for Charges 6 and 7 should run concurrently by themselves but they should run consecutively to that of Charge 5 and those of Charges 2, 3 and 4.

30.Also these burglary or attempted burglary sentences should run consecutively to the terms imposed for the two deportation order offences, ie Charge 1 and Charge 8.

31.Charge 1 and Charge 8 by themselves are separate offences.  There was a separation of almost 10 months between the two commissions of crime, so the sentences for Charge 1 and Charge 8 should be consecutive to each other. 

32.Finally, I have to consider the totality to arrive at the right final sentence.  I will make this order.  The 30 months’ imprisonment of each of Charge 2, 3 and 4 are to run concurrently.  The two terms of 30 months of imprisonment in Charge 6 and 7 also are to run concurrently, with 3 months of which to run consecutively to the terms for Charges 2, 3 and 4.  I also order 3 months of the 30-month term for Charge 5 to run consecutively to those terms for Charges 2, 3, 4, 6 and 7.  Thus, the total sentence for Charges 2 to 7 is 36 months of imprisonment.

33.The term for Charge 1 is 18 months’ imprisonment, I order 3 months of which to run consecutively to Charges 2 to 7.  The term for Charge 8 is 21 months’ imprisonment, I also order 3 months of which to run consecutively to Charges 1 to 7.  So the final sentence for all the 8 charges would be one of 42 months’ imprisonment.