HKSAR v. YEUNG MING NOK

DCCC 6/2023

[2023] HKDC 1693

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 6 OF 2023

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REASONS FOR SENTENCE

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1.  The Defendant (“D”)  pleaded guilty to 3 charges: -

Charge 1	12 July 2021	Obtaining property by deception
Charge 2	18 July 2021	Burglary
Charge 3	9 January 2022	Attempted burglary

Charge 1 (Incident 1)

2.  On 12 July 2021 at around 2:15 pm, PW1 lost his Bank of East Asia Credit Card in the male changing room at Tung Chung Swimming Pool.

3.  On the same day, PW1 received notifications that two transactions (of HK$7,998 and HK$9,898 respectively)  had been made with his BEA Credit Card without his authorization.  Case was reported.

4.  It was revealed that D used the BEA Credit Card to purchase two iPhones in Fu Tung Plaza, Tung Chung between 3:24 pm and 3:28 pm on the same day.  D was also given 2 packs of disinfecting wipes and 2 Cinema City redemption vouchers by the shop.

Charge 2 (Incident 2)

5.  The Noodle shop was an open shop without lock or gate.

6.  In the evening of 18 August 2021 at about 8:10 pm, PW2 placed about HK$1,000 in the drawer, but did not lock the drawer.  Next morning, the staff found the money went missing.

7.  PW2 was informed and case was reported. (Charge 2)

8.  The incident was captured by CCTV.  On 18 August 2021 at about 11:20 pm, the D opened a metal drawer and took something therefrom.  About a minute later, the CCTV camera was moved and the drawer area could no longer be captured by the machine.

Arrests and cautioned interviews for Incidents 1 & 2

9.  On 20 August 2021, D was arrested for Incident 2.  Under caution, D said:

“Ah Sir, I stole HK$1,000 upon momentous greed, give me a chance.”

10.  Subsequent to Police further investigations, the D was arrested for Charge 1.

Charge 3 (Incident 3)

11.  D moved to Ngau Au Village in Tung Chung with his aunt after the occurrence of Incidents 1 & 2.

12.  At about 1:20 am on 9 January 2022, PW4, heard some noises from the kitchen and saw a male outside the kitchen window standing on a canopy.

13.  The male fled immediately upon seeing PW4.

14.  On 11 January 2022, the D was intercepted by the police and under caution, D admitted that he had been present in the vicinity of Charge 3 at about 1:20 am on 9 January 2022 and that he had climbed onto the canopy to see if there was anything that he could steal.

Criminal records

2017	Theft	SP discretion
2019	Attempted theft	15 months’ probation order
10/2022	Shoplifting	DC order - released in March, 2023

Mitigation

15.  At the time of the offence, the D was 16 years old.  Now he is 18 years old.

16.  He was sentenced to Detention Centre in 10/2022 for a charge of theft after the present 3 incidents.  During detention, he had received training to reform himself and also resumed studies to advance himself.

17.  His mother also visited him, of which he was very much appreciated as she has 7 children and they all need her care and attention.

Pre-sentencing reports

(a)  Training Centre report

18.  The Training Centre report tells me that the D has suffered from ADHD.  His academic performance at school was poor.

19.  His parents divorced in 2014 when he was 9 years old.  The D was left to the custody of his grand-parents to look after while his mother lived apart from him.

20.  His father left him unattended and the D was deprived of proper parental care.  He was sent to a Small Group Home in 2015 for a year.  Thereafter he was under the care of his mother.

21.  His mother was aware of his thievish behavior when he was 13 years old.  However, expert’s assessment did not detect any irregularity.

22.  His mother has been interviewed, she vowed that she will continue to provide support to the D and will not give up her hopes on him.

(b)  The Psychologist report

23.  He had a deprived childhood.  He was unattended and unsupervised most of the time during his childhood.  The Psychologist is of the opinion that his risk of reoffending appeared to be on the higher end of the moderate range given the chronic nature of the offences, his strong intend to steal and his underestimation of the risk of the offending behavior.

24.  The Psychologist considered that psychological treatment is necessary.

(c)  The Young Offender Assessment report

25.  The D told the panel that he started stealing at the age of 8.  There were about 50 times of theft without being arrested to satisfy his materialist desire.  He also got excited from this thievish behavior.

26.  He reviewed his skills each time and looked for new targets.

27.  The panel is of the opinion that there is a need to handle his habitual stealing behavior by psychological counselling.

28.  In view of his long history of stealing and the seriousness of the offences, it is recommended Training Centre Programme with provision of psychological services for him.

29.  In both psychological and training centre reports, the D said that he just walked past and have no intention to steal.  After clarification, the Defence informed this Court that the D maintained in charge 3 his guilty plea and admission to the summary of facts.

Sentence

Charge 1

30.  According to the case of HKSAR v Li Chi Yat CACC 189/2018, the Defence submitted that the starting point should be lowered than 2 years.

Charge 2

31.  As the Noodle shop was an open shop without lock or gate.  The cash drawer was not locked as well.  The Noodle shop suffered a loss of about $1,000.  It is a modest amount.  The Defence said that it was a classic case of “opportunistic burglary.”

Charge 3

32.  The Defence accepted that it was a domestic premise.  However, no tools were involved to gain entry into the property, there was no damages or occasioned any loss.  The D was acting alone.

33.  The Defence also relied on HKSAR v Tsang Chun Yin [2018] 1 HKLRD 1128, in this case, the appellant was a University student, pleaded guilty to 2 burglary charges and 1 attempted burglary of the student dormitories.

34.  He was ordered to serve a total sentence of 18 months for all 3 charges. However, the appellant was 24 years old at the time of sentence.

35.  What the Defence is trying to do is to persuade me to impose a sentence on the D so that he can be released earlier.

36.  I am fully aware that the D had been sentenced to Detention Centre in 2022 for an offence (TMCC 1598/2022)  that he committed after the present offences.  He was discharged in 3/2023 and has been waiting for his sentence for about 9 months. (now is 11/2023).

37.  What the police should do is to bring the case of TMCC 1598/2022 to the attention of the DOJ for further advice as it is better to deal with the D of all the offences in one go.

38.  On the other hand, the Defence can also write to the court to bring forward the hearing date instead of waiting until November 2023. The Defence should have known that I am duty bound to call pre-sentencing reports. 

39.  According to S109A Criminal Procedure Ordinance Cap 221 that: -

“Restriction on imprisonment of persons between 16 and 21 years of age

(1)  No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

(1A)  This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by Schedule 3.”

40.  In the present case, the D was 18 years old at the time of sentence.  All the charges he pleaded guilty to are not except offences.

41.  As such pre-sentencing reports is required.

42.  Having read all the reports before me and in view of his age, his background and his habitual stealing problem, I agreed with the Panel that it is best to impose a Training Centre Order with provision of psychological service for the D.  It is for his own good in his future so that he can reinvent himself.

43.  To this end, I impose a Training Centre Order with the provision of psychological counselling for all the three charges.