HKSAR v. Avellaneda Dulce Tampus and Others

DCCC 1012/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1012 OF 2012

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Reasons for Sentence

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1.Jean Tan Enriquez, the 2nd defendant, and Angel Rafanan Villanueva, the 3rd defendant, you both pleaded guilty to the charge of burglary which is Charge 1 on the charge sheet.

2.That burglary took place at the home of Miss Juliet Balicao in Hennessy Road, Causeway Bay, on the evening of 20 August last year.  Miss Balicao was a person who was known to you, Jean Tan Enriquez.

3.Miss Balicao ran a domestic helper agency and in the afternoon of that day she locked up her home and went to work.  You both took advantage of her absence to prise open the door of her home and steal a substantial quantity of jewellery, a coin bag and $6,000 in cash.

4.The jewellery consisted of 11 wrist chains, 4 necklaces, 16 rings, 3 watches, 8 earrings, 2 pairs of earrings, 5 pendants and 3 bracelets.  The total value of the stolen jewellery was just under $150,000. While most of the items have fortunately been recovered after your arrest, cash of $6,000 and goods worth $24,100 still have not been recovered.

5.A number of stolen items were pawned and, as a result of an agreement with the pawnbrokers concerned, Miss Balicao will have to pay half of the amount for which the items were pawned to recover her goods, so she will have to pay $15,200.  Obviously, therefore, Miss Balicao has suffered substantial loss as a result of this offence.

6.I bear in mind that this was a burglary committed in the daytime and nobody was present in the premises at that time. However, burglary of domestic premises is always a serious offence.  It is not merely an offence against property but a violation of somebody else’s private home.

7.As I am sure you have been told by your legal representatives, the normal starting point for burglary in domestic premises is 3 years’ imprisonment and that is the starting point I adopt in this case. 

8.In your case, Angel Rafanan Villanueva, I have listened to all that your counsel, Mr Lam, has said on your behalf and, in particular, what he has told me about your family circumstances.

9.You are not somebody who can claim to be of previous good character.  You already have a previous conviction for theft although the sentence would indicate that it cannot have been a particularly serious offence.  

10.The only real mitigation in your case is your plea of guilty for which you are entitled to the usual discount of one-third and that results in a sentence of 2 years’ imprisonment on Charge 1, and that is the sentence that I pass upon you on that charge. 

11.You have also pleaded guilty to the offence of resisting a police officer in the execution of his duty, contrary to section 63 of the Police Force Ordinance.

12.At around 9.15 pm on 22 August last year, the police went to a room in Ming Court which is a hotel on the 2nd floor of a building in Lockhart Road.  They went there after they had been told by the 2nd defendant that some of the stolen property was there.  You were found outside the room and taken inside.

13.When the police attempted to arrest you, you pushed DPC 1640 away and attempted to flee.  The officer and his colleague tried to subdue you, but you put up a violent struggle. 

14.The DPC suffered multiple abrasions to his right arm, and I have been shown photographs of those injuries. 

15.This is not the first time that you have assaulted a police officer.  In 1998 you were sentenced to 1 month’s imprisonment for assaulting a police officer.

16.I am satisfied that this offence warrants a starting point of 3 months’ imprisonment which I discount by one-third to reflect your plea of guilty resulting in a sentence of 2 months’ imprisonment which I order to run consecutively to the sentence I impose on Charge 1, so the total sentences passed upon you today therefore are 2 years 2 months’ imprisonment.

17.In your case, Jean Tan Enriquez, there are a number of mitigating features.  Two days after the burglary, on 22 August, you contacted the victim who was your friend by means of an SMS message and told her that you wanted to repay money to her.  You came to the meeting with $3,871 on you and 20 of the stolen items which you say was the remaining share of the items stolen. 

18.I am prepared to accept that you had an attack of conscience and were prepared to give Miss Balicao the money and return those 20 items stolen from her.  As it turned out, Miss Balicao had informed the police and you were arrested before you had done so.  However, you were honest enough to tell the police that there were other stolen items that had been stolen in the burglary at Ming Court in Lockhart Road.  This led to the recovery of 13 other items of jewellery and the arrest of the 3rd defendant. 

19.Bearing in mind your previous good character and those circumstances, I am prepared to give you a discount of 1 year from the initial starting point.  You have pleaded guilty and are entitled to a further discount of one-third resulting in a sentence of 16 months’ imprisonment on Charge 1.

20.You have also pleaded guilty to the offence of breaching the conditions of your stay, contrary to section 41 of the Immigration Ordinance, Cap 115, that is Charge 3.

21.You came to Hong Kong as a domestic helper and after the termination of your employment contract, you were permitted to stay as a visitor until 8 October 2009.  You were granted no extension.  On 20 August 2012 you had overstayed by almost 3 years.

22.In my view, the appropriate starting point for this offence is 3 months’ imprisonment which I discount by one-third to reflect your plea of guilty resulting in a sentence of 2 months’ imprisonment, and that is the sentence that I pass on that charge, Charge 3.  I order that sentence to run consecutively to the sentence on Charge 1 and that means you are sentenced for a total of 18 months’ imprisonment on both charges.

23.You, Dulce Tampus Avellaneda, were convicted by me after trial of the offence of handling stolen goods.  On the same evening the burglary occurred, you accompanied the 2nd defendant to a pawn shop and while she pawned 4 items stolen in the burglary for $11,500, you pawned a wrist chain stolen in the burglary for $700. 

24.I was satisfied that you were fully aware that the wrist chain was stolen.  I bear in mind that there is no suggestion that you had any involvement in or prior knowledge of the burglary.  I am also prepared to accept that the reason you committed this offence was to raise money to pay part of the debt you owed to the victim of the burglary. 

25.Having heard the evidence in this case, I cannot exclude the possibility that you needed money before the victim would release your passport which she was holding as security for your loan.

26.I also bear in mind that you are a person of previous good character.

27.In my view, the appropriate starting point, bearing in mind these factors, is 9 months’ imprisonment.  You have shown no remorse for what you had done and accordingly are entitled to no further discount from the starting point.  I therefore sentence you to 9 months’ imprisonment.