HKSAR v. Morales Henao Jhon Jairo

DCCC 337/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 337 OF 2014

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Reasons for Sentence

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1.Defendant pleaded guilty to a charge of burglary. 

2.At about 7 pm on 7 March 2014, the resident of Ground Floor, No. 325 Sai Keng Village, Sai Kung, New Territories, received alerts from the anti-theft alarm system of his premises.  The CCTV footage revealed an unknown person holding a torch inside. Police later gained entry and found defendant inside the toilet whom attempted to flee but was subdued and arrested.

3.Upon search, defendant was found a black torch, a chisel and a mobile phone.  The premises was found signs of ransacking.  Window frames of sitting room and kitchen had been prised open.  The estimated loss arising from the damage was about $4,000.

4.In the video recorded interview, defendant in the presence of a Spanish interpreter admitted that he found the job through a Chinese male whom gave the defendant a torch, the chisel, a pair of gloves and mobile phone.  Defendant then realised it was to burgle the premises and the Chinese male also agreed to pay him rewards.

5.Having entered the premises, the alarm was set off.  Defendant left, but was ordered to go back by that Chinese male. The police then came and arrested him.

6.CCTV also recorded that the defendant entered by climbing through window and had entered the premises three times between 7 to 7.30 pm on that day.

7.Defendant aged 34. He had 2 previous criminal convictions, both in November 2013 of possession of dangerous drugs and breach of condition of stay, where he was imprisoned for 3 weeks.

8.Mr Chan for the defendant submits that the defendant came from Colombia to Hong Kong as an asylum seeker.  He has a daughter aged 10 years old.  Defendant also handed in a letter stating that he apologised to the house-holder and also to the Hong Kong citizens and regretted for what he had done.

9.Mr Chan also says that the defendant is not a professional burglar.  No violence had been used and there was no property lost.  Mr Chan also tried to say that there had been some form of coercion into committing the present offence, but when asked about the details Mr Chan submits that there was perhaps just yelling and shouting to the defendant to go in again, but there was no other violence or force being used.

10.Now, defendant being a mature adult surely knew what he had been doing and the circumstances cannot possibly constitute coercion in legal sense.

11.Burglary is a serious offence.  The Court of Appeal in quite some cases involving domestic premises would take a starting point of 3 years’ imprisonment.

12.Concerning the present offence, the defendant was equipped with a torch and gloves.  The offence was clearly under planning and premeditation.

13.However, taking into account all the circumstances and the mitigation submitted, defendant pleaded guilty, saving the court’s costs and time, I would still adopt 3 years’ imprisonment as starting point, to be reduced to 2 years upon guilty plea.

14.Therefore, for the present offence, defendant is sentenced to 2 years’ imprisonment.