HKSAR v. TAI CHI SHING AND ANOTHER

DCCC477/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 477 OF 2011

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Reasons for Sentence

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1.  The 1st defendant has pleaded guilty to Charges 1, 4 and 5. The 2nd defendant pleaded not guilty to Charges 2, 3 and 4 but has been convicted after trial.

2.  The facts show that these offences were committed at the JUSCO department store on 22 December 2010.  When the 1st defendant selected some jewellery valued at $12,280 and had tried to make payment for them, he firstly tried to use an Abu Dhabi Visa Card in his name. This card was forged.  The transaction was unsuccessful.  He then produced another forged card in his own name, a Bank of America card.  Again the transaction was unsuccessful, and those facts supported the 1st charge against him of using a false instrument.      

3.  The 1st defendant then called over the 2nd defendant, who came over.  The 2nd defendant then presented another forged card in an attempt to make payment for jewellery.  This was a CitiBusiness MasterCard. That transaction was unsuccessful, and that forms the facts against the 2nd defendant on the 2nd charge. 

4.  The two defendants immediately left but they were stopped by the police very shortly afterwards.  The 2nd defendant was searched, and on him, in his possession in any event, the CitiBusiness MasterCard was found, and also an NSGB Visa Card.  This again was another forged card, and those formed the facts of the 3rd charge against the 2nd defendant.     

5.  The 2nd defendant said under caution that the 1st defendant had given him the cards that he had in his possession, and that he would be given money afterwards. 

6.  In respect of the 4th charge, it was agreed by the 1st defendant and found by me that the defendants agreed to use the credit cards to induce the salespersons of JUSCO to accept them as being genuine, thereby establishing a conspiracy to use false instruments.    

7.  On the 5th charge, the 1st defendant failed to attend a court hearing in respect of these charges on 24 March 2011.  A warrant of arrest was issued.  On 7 August 2011, the 1st defendant called the police to report an attempted suicide by his girlfriend and he was subsequently arrested.   

8.  The 1st defendant is aged 21 years.  He has three previous conviction records.  He was placed on probation in the year 2006 for theft.  In 2008, he was sentenced to a Rehabilitation Centre for possession of infringing copies.  In 2009, he was fined for an assault.  He is currently serving a sentence at the Drug Addiction Treatment Centre for an offence of unlawful sexual intercourse and that sentence was imposed on 29 August 2011. 

9.  The 2nd defendant is aged 17 years old and has hitherto a clear record. 

10.  Because the 1st defendant was currently in a Drug Addiction Treatment Centre and the 2nd defendant was of a very young age, I obtained various reports upon them before sentencing.    

11.  These are serious offences and there is clear authority that a prison sentence is the normal mode of sentencing for an adult, even a first offender, and sentences can range with a starting point of up to 3 years’ imprisonment.  However, the 1st defendant is currently undergoing some Drug Addiction Centre treatment and one has to consider whether that should be substantially interrupted, and the 2nd defendant is not an adult, so different sentencing considerations will apply to him.      

12.  In respect of the 1st defendant, I obtained a report from the Correctional Services Department.  They confirm that that defendant is currently serving a Drug Addiction Treatment Centre, that he was sentenced there on 29 August 2011.  The report shows that the defendant had maintained a clear disciplinary record at the Centre, and the defendant was said to be the only child in a broken family, his parents divorcing in 1992.  He was cautioned by police in primary school, and was taking dangerous drugs whilst in Primary 5.  In 2006, he was placed on probation.  Despite this, he was selling infringing copy videos in Mong Kok and sentenced to Rehabilitation Centre in 2008.  He was recalled to the Rehabilitation Centre.  It was said that even after discharge from his statutory supervision, he continued a loose lifestyle, committing the further offences in relation to the sex offences in August and September 2010, and then of course these offences in December 2010.   

13.  The defendant was arrested in early 2011, but skipped bail in March 2011, and then further sentenced to Drug Addiction Treatment Centre in August 2011.  It says that he is receiving treatment, his response towards the treatment was fair.  Considering the recommendation, they say taking into consideration his drug-taking habit, another period of compulsory drug treatment programme coupled with statutory supervision would be beneficial to him.  He is suitable for admission at a Drug Addiction Treatment Centre.                

14.  So, in respect of this defendant, I have a recommendation that he would benefit from a further period of compulsory drug treatment.  Of course, any sentence of imprisonment over 9 months’ imprisonment would interrupt that course of treatment, and the question I have to address in respect of this defendant is whether it would be more beneficial for society itself to continue his treatment, or should I simply approach him by a way of imposing a further sentence of imprisonment.

15.  As far as the 2nd defendant is concerned, as I have already said, he is only 17 years old.  I obtained reports for Probation Services, from the Correctional Services Department, and also from the Young Offender Assessment Panel.  The defendant appears to have made a poor impression with the probation officer.  The probation officer observed that the defendant was born in working-class family.  He has exhibited problematic behaviour from P3 onwards, had stolen from convenience shops and such alike stores, and also became a triad member in P6, and had a poor record as far as maintaining  jobs was concerned.  He is described as being evasive by the probation officer, and is said to have poor self-disciple and legal concept.  Because of his poor self-discipline, loose life pattern, evasive attitude towards the offence, probation supervision was not recommended.  He is said to be in need of strict disciplinary character training in a confined setting.  For the same reasons, community service was also not recommended. 

16.  The Correctional Services Department identified the defendant’s weak self-controllability and weak law-abiding concept and considered a period of disciplinary training coupled with statutory supervision would be beneficial to his reformation.  He was considered to be most suitable for detention in a Detention Centre. 

17.  The Young Offenders Assessment Panel considered the defendant’s case on 26 October 2011.  They considered him to be a playful and simple-minded youngster.  The defendant repented his offence; in other words, he was remorseful before the panel.  They still considered him to be a bit evasive.  The panel took into consideration these what they saw to be fundamental factors, his young age, remorseful attitude, generally stable work habit, and good family support.  These were positive factors.  The negative factor they identified is the seriousness of the present offence.  Their consideration on balancing those factors was that unpaid work with counselling service is an appropriate measure to instil the sense of law-abidingness into his mind before a custodial sentence becomes a must, or say a necessity.

18.  They considered a lengthy period of community service was an appropriate disposal for this defendant.  The defendant’s attitude before the Young Offender Assessment Panel appears to have been more positive than it was before the probation officer, especially in terms of the remorse shown, and the panel considered because of his young age and support that it may be too early to consider a custodial option for the defendant. 

19.  I have to consider what the appropriate sentences on these offences are.  As I have already said, these are serious offences warranting lengthy sentences of imprisonment.  Both the defendants are still young.  The 1st defendant is only just 21.  He has been through a number of different forms of sentencing in the past.  One can identify his desire and consumption of drugs has been a fundamental motivating factor in his criminality.  It is clear to me that this needs to be dealt with before he can be released properly back into society, and the interdiction or preventing of his drug-taking habit is necessary for the protection of society and his own benefit as well.  I consider that this at present still overrides the necessity to impose lengthy prison sentences.  Also, the statutory supervision imposed following the treatment programme will of course maintain some control over the defendant.  For these reasons, I am going to generally follow the recommendation of the Correctional Services Department in respect of sentencing this defendant.     

20.  The sentence I would impose upon the 1st defendant will be as follows.  In respect of the 1st charge, there will be a sentence of Drug Addiction Treatment Centre with conviction recorded.  On the 4th charge, a sentence of Drug Addiction Treatment Centre with conviction recorded. 

21.  In respect of the 5th charge, I am going to adopt a slightly different approach.  This again is a serious offence and shows a lack of what one would call law-abiding instincts.  I will impose a short sentence of imprisonment, which will have the effect of suspending his Drug Addiction Treatment Centre treatment for a short period whilst that sentence is served, but will allow for its resumption on the termination of sentence.   I will take a starting point of 6 months’ imprisonment, reduce that to 4 months’ imprisonment for his plea of guilty.  So on the 5th charge there will be a sentence of 4 months’ imprisonment. 

22.  As far as the 2nd defendant is concerned, again I have the conflicting recommendations.  However, the Young Offender Assessment Panel is specifically tasked to resolve these kind of conflicts, and the court should not ignore their collective wisdom without great consideration.  I consider that at the end of the day the panel has made a correct recommendation, especially considering the defendant’s young age, the fact he has not been convicted of any previous offence, and the other forms of support that the panel refer to.  They override at this stage the necessity for the approach of compulsory disciplinary training. 

23.  What I shall do is impose in respect of each charge that the defendant has been convicted of, that is the 2nd, 3rd and 4th charge, a total of 210 hours of community service to be served concurrently, which will be a total of 210 hours of community service.  This order requires the defendant’s consent.  I shall explain to the defendant what is required of the defendant under this order now, and the defendant must indicate if he understands that and if he consents to be placed on the order.     

24.  This order requires that you provide to the community a total of 210 hours of unpaid work at the supervision of a supervising officer.  You must complete that work within the time allocated to the satisfaction of the supervising officer.  You must attend all appointments for you to conduct your work and also any further appointments the officer might make.  You must keep the peace and be of good behaviour generally.  You must tell your supervising officer if you have any change of address or employment.  If you have any difficulty in completing the work within the time allocated or, in any event, within one year to date, then you must report that matter back to your supervising officer, and the terms of this order can only be altered by an order of this court.  As I have said, you must complete this work within one year of today.  If for whatever reason you are unable to do that, then you must refer that matter back to the court through your supervising officer.          

25.  Now, do you understand the requirements for you under this order? 

2ND DEFENDANT: I understand.

26.  Do you consent to perform the work?

2ND DEFENDANT: I agree.

27.  When you receive the order, there will be a reporting condition.  That is also a part of the order.  If you breach that reporting condition, then you will be in breach of the order.  I must also make it clear that if you breach any term of the order, or you commit any further offence while this order is in force, you will be brought back to this court and sentenced again for the offences of which you have been convicted.  Do you understand that and do you still consent to perform the work?

2ND DEFENDANT: I understand.

28.  Consent?

2ND DEFENDANT: I understand.

29.  Does he still consent to it?

2ND DEFENDANT: I agree.