DCCC36/2014 HKSAR v. GUZMAN BETANCUR JUAN CARLOS - LawHero
DCCC36/2014
HKSAR v. GUZMAN BETANCUR JUAN CARLOS
區域法院（刑事）HH Judge Woodcock4/5/2014
DCCC36/2014
A A
DCCC 36/2014
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 36 OF 2014 C
D
---------------------- D
HKSAR
E E
v
F Guzman Betancur Juan Carlos F
G ---------------------- G
Before: HH Judge Woodcock
H Date: 5 May 2014 at 11.15 am H
Present: Mr Shaun Kelly, on fiat, for HKSAR
Mr Michael John Bruce Arthur, instructed by Krishnan
I & Tsang, for the defendant I
Offence: (1) and (2) Burglary (入屋犯法罪)
J (3) (5) and (7) Possession of a forged travel document J
(管有偽造的旅行證件)
(4) (6) and (8) Making a false representation to an
K Immigration Assistant lawfully acting under or in K
the execution of Part II of the Immigration
L Ordinance (向一名根據或為執行《入境條例》第II部而合法行事 L
的入境事務主任作出虛假的陳述)
M --------------------- M
N Reasons for Sentence N
---------------------
O O
1. The defendant has pleaded guilty to four charges, two
P charges being burglary, contrary to section 11(1)(b) and (4) of P
the Theft Ordinance, Cap 210; and two further Immigration
Q offences, the first being possession of a forged travel Q
document, and the fourth being making a false representation to
R R
an Immigration officer offence.
S S
2. The facts are as follows. On 6 July 2013 a French man
T checked in to Room 2316 in the Peninsula Hotel. On 7 July, in T
the early hours of the morning, 4.27 am, you, the defendant,
U pretended to be the French man to claim a card key from the U
CRT25/5.5.2014/KS 1 DCCC 36/2014/Sentence
V V
A A
front desk. In order to obtain the key, you gave the front desk
staff the French man’s full name and his date of birth.
B B
Thereafter you were given a key.
C C
3. The next day, on 7 July, at 2 pm, the front desk
D received a call from that room, and the caller said that he had D
forgotten the code that he had set to the safe. You let in two
E E
members of staff, who opened the safe and left the room. Later
that same day, at about 7 pm, when the occupant returned, he
F F
reported the theft of his property, some being from the safe
G itself and some being from within the room. The value of his G
loss was $23,800, covered by the hotel insurance.
H H
4. From the facts I can see that you are a Colombian
I I
national, that you entered Hong Kong in July before these
offences were committed on your Colombian passport, which has
J J
been determined to be a legal passport. You left Hong Kong on
K
13 July via the airport on the same Colombian passport. K
L 5. Before you left Hong Kong, on the day before, you L
burgled a second hotel room at the Disneyland Hotel. What
M happened there was a hotel guest of Room 5033 left her room M
early that morning, and a cleaner entered to do his job. Whilst
N N
he was cleaning this room, you entered and asked when he would
finish cleaning. He assumed that you were the occupant. You
O O
waited outside for a few minutes for him to finish this hotel
P room. When he came out, he prudently locked the door and asked P
you to open the door with your own key card. You had two key
Q cards. The first did not work; the second did, and you entered Q
the room. The cleaner then left you there.
R R
6. Not long after, you told another member of hotel staff
S S
that you had forgotten the combination of the safe that you had
T set. Other staff came to this room and asked for your name. You T
gave them the name that matched the hotel guest’s name. The safe
U was opened for you and there was a passport in it. The manager U
CRT25/5.5.2014/KS 2 DCCC 36/2014/Sentence
V V
A A
checked the name against the name that you gave the manager. It
was the same. They then left you in the room.
B B
C 7. Later that evening a burglary of that room was C
reported, and cash was taken from this room, a total of US$1,200
D and 1,000 Indian rupee. You left Hong Kong the next day. D
E E
8. Some months later, on 20 September, you were caught
roaming the 16th floor of the Sheraton Hotel by a member of
F F
staff that recognised you from a photograph. Your image had been
G circulated by the Peninsula Hotel after the burglary in July. G
This rather observant member of staff stopped you, and the
H police were called. You were at the time living in Chungking H
Mansions not far away, and your room there was searched.
I I
9. The police found two passports, your real Colombian
J J
passport and a forged Mexican passport. This was the passport
K
that you had used to enter Hong Kong on 17 September, several K
days prior to your arrest, and is therefore the subject of
L Charges 3 and 4. L
M 10. After your arrest and under caution, you made full M
admissions to the police officers, the details of which are
N N
covered in the Statement of Facts. Your plea of guilty is your
best mitigation.
O O
P 11. In Hong Kong you have a clear record. The facts show P
that you came back to Hong Kong several months after committing
Q the two burglaries in July and you were caught in the Sheraton Q
Hotel. I suspect that you had come to commit similar offences
R R
again. I suspect that in July you were not acting on your own,
judging by the fact that you knew the hotel occupant’s name and
S S
birthday and knew he was not there at 4 o’clock in the morning.
T T
12. I have been told in mitigation that you came to Hong
U Kong to commit offences under duress, under threat; your family U
CRT25/5.5.2014/KS 3 DCCC 36/2014/Sentence
V V
A A
in Mexico were threatened. I have been told today that you also
came back in September not to commit further offences but in
B B
fact to claim asylum, and that you were in the Sheraton Hotel on
C the 16th floor to look for somebody. I also note that you had C
two passports in Hong Kong but chose to use the forged one to
D enter Hong Kong. You have given an explanation as to why this D
was used to claim asylum. However, I have my doubts about this
E E
particular submission made. I will not take it any further, as
it is not particularly relevant, nor will it affect sentence
F F
significantly. Any Immigration offence of this nature is a very
G serious offence. G
H 13. I have heard today that you are 37 years old, that you H
have now claimed asylum in Hong Kong. The date of the letter
I I
before me is 23 December 2013, where your application has been
confirmed to have been made. Health-wise I have been told that
J J
you are suffering from HIV and you have for the past 20 years.
K
For the past year you have been unable to afford treatment. You K
are now receiving treatment and have been since you have been in
L custody. This is treatment that you could previously not afford. L
From the letter submitted, your condition whilst in custody has
M been stable, but today I have been told it is in fact otherwise. M
However, no further information is available as to your medical
N N
condition now. I could adjourn for a full medical report as you
are receiving treatment at Queen Elizabeth Hospital, but
O O
Mr Arthur has specific instructions that you do not wish to
P adjourn sentence to obtain a medical report. I will proceed on P
the basis that you are an HIV sufferer receiving treatment with
Q no long-term or short-term prognosis known to me. In any event, Q
when you entered Hong Kong to commit the offences in July and
R R
the Immigration offences in September, you were well aware that
you were suffering from this illness.
S S
T 14. I have considered the facts of the case. I have T
considered mitigation put forward. It was suggested that you
U were here to commit offences under duress, but I have nothing U
CRT25/5.5.2014/KS 4 DCCC 36/2014/Sentence
V V
A A
but a bare assertion. I cannot take it any further. It is not a
submission that I will take on board, nor will it mean that you
B B
are treated any more leniently because of the submission.
C C
15. The normal starting point for a hotel room burglary,
D as Mr Arthur has acknowledged, is a 3-year starting point if D
there are no aggravating factors or mitigating factors, and this
E E
is supported by an authority, HKSAR v Ng Wai Hing CACC 621/2012.
From the facts and mitigation made, I see no aggravating factors
F F
to increase that starting point, nor do I see any mitigating
G factors to reduce that starting point. G
H 16. As for the two Immigration offences, there are no H
guidelines except that an immediate custodial sentence is
I I
appropriate. I will take into account the seriousness of those
two offences and the use made of the forged Mexican passport.
J J
K
17. For the first two charges I will take a starting point K
of 3 years, and for the 3rd and 4th charge I will take a
L starting point of 18 months. L
M 18. Defendant, please stand up. You have pleaded guilty to M
all four charges, and you are entitled to a discount of
N N
one-third for your plea.
O O
19. After such a discount, for Charge 1 and 2 you are
P sentenced to 2 years’ imprisonment on each charge. For Charges 3 P
and 4 you are sentenced to 1 year’s imprisonment.
Q Q
20. I have taken into account the date of the offences and
R R
the totality principle. For Charge 2, of the 2 years’
imprisonment I have imposed, 6 months of that 2 years will be
S S
served consecutively to Charge 1 and the balance concurrently.
T For Charges 3 and 4, they will be served concurrently, but for T
Charge 3, 3 months of the 1-year term of imprisonment will be
U served consecutively to Charge 1 and the balance concurrently. U
CRT25/5.5.2014/KS 5 DCCC 36/2014/Sentence
V V
A A
For Charge 4, the 1-year term of imprisonment will be served
concurrently to Charge 1.
B B
C 21. That is a total sentence of 2 years and 9 months. Do C
you understand that sentence?
D D
E E
F A. J. Woodcock F
District Judge
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT25/5.5.2014/KS 6 DCCC 36/2014/Sentence
V V
A A
DCCC 36/2014
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 36 OF 2014 C
D
---------------------- D
HKSAR
E E
v
F Guzman Betancur Juan Carlos F
G ---------------------- G
Before: HH Judge Woodcock
H Date: 5 May 2014 at 11.15 am H
Present: Mr Shaun Kelly, on fiat, for HKSAR
Mr Michael John Bruce Arthur, instructed by Krishnan
I & Tsang, for the defendant I
Offence: (1) and (2) Burglary (入屋犯法罪)
J (3) (5) and (7) Possession of a forged travel document J
(管有偽造的旅行證件)
(4) (6) and (8) Making a false representation to an
K Immigration Assistant lawfully acting under or in K
the execution of Part II of the Immigration
L Ordinance (向一名根據或為執行《入境條例》第II部而合法行事 L
的入境事務主任作出虛假的陳述)
M --------------------- M
N Reasons for Sentence N
---------------------
O O
1. The defendant has pleaded guilty to four charges, two
P charges being burglary, contrary to section 11(1)(b) and (4) of P
the Theft Ordinance, Cap 210; and two further Immigration
Q offences, the first being possession of a forged travel Q
document, and the fourth being making a false representation to
R R
an Immigration officer offence.
S S
2. The facts are as follows. On 6 July 2013 a French man
T checked in to Room 2316 in the Peninsula Hotel. On 7 July, in T
the early hours of the morning, 4.27 am, you, the defendant,
U pretended to be the French man to claim a card key from the U
CRT25/5.5.2014/KS 1 DCCC 36/2014/Sentence
V V
A A
front desk. In order to obtain the key, you gave the front desk
staff the French man’s full name and his date of birth.
B B
Thereafter you were given a key.
C C
3. The next day, on 7 July, at 2 pm, the front desk
D received a call from that room, and the caller said that he had D
forgotten the code that he had set to the safe. You let in two
E E
members of staff, who opened the safe and left the room. Later
that same day, at about 7 pm, when the occupant returned, he
F F
reported the theft of his property, some being from the safe
G itself and some being from within the room. The value of his G
loss was $23,800, covered by the hotel insurance.
H H
4. From the facts I can see that you are a Colombian
I I
national, that you entered Hong Kong in July before these
offences were committed on your Colombian passport, which has
J J
been determined to be a legal passport. You left Hong Kong on
K
13 July via the airport on the same Colombian passport. K
L 5. Before you left Hong Kong, on the day before, you L
burgled a second hotel room at the Disneyland Hotel. What
M happened there was a hotel guest of Room 5033 left her room M
early that morning, and a cleaner entered to do his job. Whilst
N N
he was cleaning this room, you entered and asked when he would
finish cleaning. He assumed that you were the occupant. You
O O
waited outside for a few minutes for him to finish this hotel
P room. When he came out, he prudently locked the door and asked P
you to open the door with your own key card. You had two key
Q cards. The first did not work; the second did, and you entered Q
the room. The cleaner then left you there.
R R
6. Not long after, you told another member of hotel staff
S S
that you had forgotten the combination of the safe that you had
T set. Other staff came to this room and asked for your name. You T
gave them the name that matched the hotel guest’s name. The safe
U was opened for you and there was a passport in it. The manager U
CRT25/5.5.2014/KS 2 DCCC 36/2014/Sentence
V V
A A
checked the name against the name that you gave the manager. It
was the same. They then left you in the room.
B B
C 7. Later that evening a burglary of that room was C
reported, and cash was taken from this room, a total of US$1,200
D and 1,000 Indian rupee. You left Hong Kong the next day. D
E E
8. Some months later, on 20 September, you were caught
roaming the 16th floor of the Sheraton Hotel by a member of
F F
staff that recognised you from a photograph. Your image had been
G circulated by the Peninsula Hotel after the burglary in July. G
This rather observant member of staff stopped you, and the
H police were called. You were at the time living in Chungking H
Mansions not far away, and your room there was searched.
I I
9. The police found two passports, your real Colombian
J J
passport and a forged Mexican passport. This was the passport
K
that you had used to enter Hong Kong on 17 September, several K
days prior to your arrest, and is therefore the subject of
L Charges 3 and 4. L
M 10. After your arrest and under caution, you made full M
admissions to the police officers, the details of which are
N N
covered in the Statement of Facts. Your plea of guilty is your
best mitigation.
O O
P 11. In Hong Kong you have a clear record. The facts show P
that you came back to Hong Kong several months after committing
Q the two burglaries in July and you were caught in the Sheraton Q
Hotel. I suspect that you had come to commit similar offences
R R
again. I suspect that in July you were not acting on your own,
judging by the fact that you knew the hotel occupant’s name and
S S
birthday and knew he was not there at 4 o’clock in the morning.
T T
12. I have been told in mitigation that you came to Hong
U Kong to commit offences under duress, under threat; your family U
CRT25/5.5.2014/KS 3 DCCC 36/2014/Sentence
V V
A A
in Mexico were threatened. I have been told today that you also
came back in September not to commit further offences but in
B B
fact to claim asylum, and that you were in the Sheraton Hotel on
C the 16th floor to look for somebody. I also note that you had C
two passports in Hong Kong but chose to use the forged one to
D enter Hong Kong. You have given an explanation as to why this D
was used to claim asylum. However, I have my doubts about this
E E
particular submission made. I will not take it any further, as
it is not particularly relevant, nor will it affect sentence
F F
significantly. Any Immigration offence of this nature is a very
G serious offence. G
H 13. I have heard today that you are 37 years old, that you H
have now claimed asylum in Hong Kong. The date of the letter
I I
before me is 23 December 2013, where your application has been
confirmed to have been made. Health-wise I have been told that
J J
you are suffering from HIV and you have for the past 20 years.
K
For the past year you have been unable to afford treatment. You K
are now receiving treatment and have been since you have been in
L custody. This is treatment that you could previously not afford. L
From the letter submitted, your condition whilst in custody has
M been stable, but today I have been told it is in fact otherwise. M
However, no further information is available as to your medical
N N
condition now. I could adjourn for a full medical report as you
are receiving treatment at Queen Elizabeth Hospital, but
O O
Mr Arthur has specific instructions that you do not wish to
P adjourn sentence to obtain a medical report. I will proceed on P
the basis that you are an HIV sufferer receiving treatment with
Q no long-term or short-term prognosis known to me. In any event, Q
when you entered Hong Kong to commit the offences in July and
R R
the Immigration offences in September, you were well aware that
you were suffering from this illness.
S S
T 14. I have considered the facts of the case. I have T
considered mitigation put forward. It was suggested that you
U were here to commit offences under duress, but I have nothing U
CRT25/5.5.2014/KS 4 DCCC 36/2014/Sentence
V V
A A
but a bare assertion. I cannot take it any further. It is not a
submission that I will take on board, nor will it mean that you
B B
are treated any more leniently because of the submission.
C C
15. The normal starting point for a hotel room burglary,
D as Mr Arthur has acknowledged, is a 3-year starting point if D
there are no aggravating factors or mitigating factors, and this
E E
is supported by an authority, HKSAR v Ng Wai Hing CACC 621/2012.
From the facts and mitigation made, I see no aggravating factors
F F
to increase that starting point, nor do I see any mitigating
G factors to reduce that starting point. G
H 16. As for the two Immigration offences, there are no H
guidelines except that an immediate custodial sentence is
I I
appropriate. I will take into account the seriousness of those
two offences and the use made of the forged Mexican passport.
J J
K
17. For the first two charges I will take a starting point K
of 3 years, and for the 3rd and 4th charge I will take a
L starting point of 18 months. L
M 18. Defendant, please stand up. You have pleaded guilty to M
all four charges, and you are entitled to a discount of
N N
one-third for your plea.
O O
19. After such a discount, for Charge 1 and 2 you are
P sentenced to 2 years’ imprisonment on each charge. For Charges 3 P
and 4 you are sentenced to 1 year’s imprisonment.
Q Q
20. I have taken into account the date of the offences and
R R
the totality principle. For Charge 2, of the 2 years’
imprisonment I have imposed, 6 months of that 2 years will be
S S
served consecutively to Charge 1 and the balance concurrently.
T For Charges 3 and 4, they will be served concurrently, but for T
Charge 3, 3 months of the 1-year term of imprisonment will be
U served consecutively to Charge 1 and the balance concurrently. U
CRT25/5.5.2014/KS 5 DCCC 36/2014/Sentence
V V
A A
For Charge 4, the 1-year term of imprisonment will be served
concurrently to Charge 1.
B B
C 21. That is a total sentence of 2 years and 9 months. Do C
you understand that sentence?
D D
E E
F A. J. Woodcock F
District Judge
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT25/5.5.2014/KS 6 DCCC 36/2014/Sentence
V V