HKSAR v. TONG CHEONG-LUNG AND ANOTHER

DCCC1000/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1000 OF 2011

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Reasons for Sentence

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1.  In this case, the 1st defendant has pleaded guilty to the 1st and 2nd charges, and the 2nd defendant - who is jointly charged with the 1st defendant on the 2nd charge - has pleaded guilty to the 2nd charge.

2.  The 1st charge is the charge of theft and the second one, one of burglary.

3.  The defendants have agreed the facts and I have convicted them of the offences to which they pleaded guilty.

4.  The charges to which the defendants have agreed are evidenced by a summary of facts, and these establish that the offence was conducted on 2 August 2011, and on that day, in the early hours of the morning - it was 2.25 in the morning - the defendants were seen by some police officers.

5.  They were in the vicinity of Electric Road in Tin Hau.  They saw the defendants get off a taxi and go into something called the Equinox Mercury.  This is a serviced apartment.  It is located at 23 Mercury Road in Tin Hau.

6.  About 10 minutes later, the defendants exited the serviced apartment and they were stopped by police.  Enquiries were made of the 1st defendant, who held a key card for one of the rooms in the serviced apartment, Room 902.  Some Renminbi, RMB734, were found in the right pocket of his trousers.

7.  Under enquiry, the 1st defendant told the police that he saw a drunken foreigner in Wan Chai in the early hours of that morning, and he had taken the key card from him and a mobile phone from him.  Then, they had taken a taxi to the serviced apartment which is Room 902 of that building. He had gone with the 2nd defendant.  They had ransacked the premises, taken the Renminbi and another mobile phone, and then they left.

8.  The 2nd defendant admitted similarly that he had gone to the serviced apartment with the 1st defendant.  The 1st defendant asked him to go up to the premises.  They had used the key card to open the door and taken various things from inside, and subsequently, video recorded interviews were made by the defendants.

9.  Now, the facts clearly establish the offences, so I convicted the defendants.

10.  I was then given details of the defendant’s antecedents.

11.  The 1st defendant is aged 20.  He has a clear criminal record.  He had been working in sales since 2007.

12.  The 2nd defendant is aged 23, and he worked in a restaurant and had been educated up to Form 3.

13.  This defendant had a number of previous convictions; there were four in total.  In 2005, for offences involving handling stolen goods and theft, he had been sent to a rehabilitation centre, and subsequently in 2008, he had been sent to a training centre for wounding and forced imprisonment.

14.  Various mitigations were advanced for the defendants, but because of the 1st defendant’s age, I decided to obtain reports from the Commissioner of Correctional Services Department.  I also obtained a background report on the 2nd defendant.

15.  The defendant is of an age where he is capable of being sent to the facilities of the Commissioner of Correctional Services as opposed to being sent to prison.

16.  The report on the 1st defendant shows that he was brought up in a working-class family in China.  He is the elder of two siblings.  It was said in the report that he started stealing money from his father’s restaurant in Primary 6.  He dropped out of school upon completion of Form 4 in July 2006.

17.  It said his working patterns are unstable and greediness led him to the commission of these offences.  The recommendation was to strengthen the defendant’s law-abiding concept.  It said disciplinary training coupled with statutory supervision is beneficial to him.

18.  This defendant is medically unfit for detention in a detention centre because of the fact he is overweight, so he is unsuitable for detention there.  I am told he is medically and physically fit for detention at a training centre, and recommended to be suitable for detention there.

19.  Of note is, of course, that the defendant is a first offender, still a young man, still capable by the courts of being considered for disciplinary training.  Despite the seriousness of the offences in which he is involved, that may well be the best option for him.

20.  There is a background report on the 2nd defendant.

21.  He has an unfortunate upbringing.  He has had serious asthma as a child.  He was frequently hospitalised.  His mother died when he was 8 and he was said to lack parental guidance.  He had to be admitted to a special school and his academic performance was unsatisfactory, and his involvement in crime was set out.

22.  He was originally cautioned by a superintendent, eventually sentenced to a rehabilitation centre when he was only 17 years old. He had secured jobs in restaurants and fast-food shops when he was discharged from the rehabilitation centre, but mixed with unsuitable people such as triads at that time.

23.  Then, becoming involving in what is described as a retaliating fighting incident with triad elements, he was sent to the training centre.

24.  He went to a training centre at 20 years old, could not maintain a stable job on release, and he was recalled to a training centre in October 2010.  Again, he was discharged in February 2011, continued with undesirable behaviour and peer associations.

25.  The defendant, as was said in mitigation by his counsel, was under the influence of alcohol when he committed this offence, and it is largely attributed to his lack of self control and greediness.  The defendant is identified as having a lack of consequential thinking and self discipline, despite the disciplinary training he has received.

26.  The defendant has indicated remorse to the probation officer and also a desire to turn over a new leaf, which is commendable in him.

27.  The offence - particularly, the burglary - is a serious offence.  It was said in mitigation that it was an impulse offence:  they saw the drunken foreigner, took his card, and went up to burgle the premises. It was in that sense an unplanned offence.

28.  There was no great loss of property, a small value of property taken.

29.  Both defendants were very co-operative after release, and the 2nd defendant has written and also other letters have been written on behalf of him; I have seen those.

30.  In terms of the appropriate level of sentencing, there are clear guidelines in respect of burglary.  This has to be classed as a residential burglary because it was a serviced apartment where people lived, and for an adult offender, even with a clear record, a starting point of 3 years’ imprisonment is appropriate for a residential premises’ burglary.

31.  Now, I turn to the 1st defendant.

32.  Although he is an adult - he is over 18 - he is still within the range of sentencing of the range from 18 to 21, so I can consider alternatives to an immediate sentence of imprisonment for both charges.

33.  The defendant is a young man with a clear record and a clear recommendation for detention in a training centre.  This, of course, would appear to be the best form of sentence for this defendant, because this allows for his reformation in a disciplinary setting.

34.  This defendant has pleaded guilty to the 1st and 2nd offences.

35.  I shall impose a sentence of training centre on each of those charges, obviously to be served concurrently.

36.  The 2nd defendant faces one charge.

37.  He is now 23 years old.  Unfortunately for him, he is not eligible for any form of disciplinary training; he is too old.

38.  He could theoretically have been sent to a detention centre, but given that he has been to a rehabilitation and a training centre already, I consider that a report in respect of that would be not a realistic possibility.

39.  Given the defendant’s age and his previous sentencing history, I consider that a sentence of imprisonment is the only realistic sentence for this defendant.

40.  The sentencing history of the defendant shows the failure of both rehabilitation and training centre to modify his criminal behaviour.

41.  I accept the mitigating factors set out and also the defendant has shown remorse.  He will be entitled to a full discount for his plea of guilty.

42.  I consider in this defendant’s case there is no reason to depart from the normal guideline sentence; that involves a starting point of 3 years’ imprisonment for him.

43.  After deduction for his plea of guilty, that will lead to a sentence of 2 years’ imprisonment, and those are the sentences I will impose.