HKSAR v. TAM KA MING AND ANOTHER

DCCC267/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 267 OF 2011

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Reasons for Sentence

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The Charges

1.  On 22 June 2011 the 1st and the 2nd accused appeared before me facing a total of 5 different charges.  The 1st accused was charged with a single charge (Charge 1) of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance while the 2nd accused faced a total of 4 charges, namely one “handling stolen goods“ (Charge 2) charge, contrary to section 24 of the Theft Ordinance; and secondly, two “obtaining property by deception” charges (Charge 3 and Charge 4) contrary to section 17(1) of the Theft Ordinance, Cap. 210; and lastly, one charge  of “attempted obtaining property by deception”, contrary to section 17(1) of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200, (Charge 5).

2.  The 1st accused pleaded not guilty to the 1st charge while the 2nd accused pleaded guilty to all 4 charges.  He also admitted to the summary of the admitted facts.  As a result, the 2nd accused was duly convicted of all the 4 charges. 

3.  As for the 1st accused, the trial took place immediately afterwards which lasted for a total number of 4 days until 27 June 2011 when I heard the final submission made by his counsel Mr Beel.  I then adjourned the case for verdict until today.  In the meantime, for the purpose of sentencing, I also acceded to the request of Mr Leung appearing for the 2nd accused to obtain a training centre report. 

4.  As the matter stands, this afternoon the court has returned a verdict of guilty for the 1st accused on the 1st charge with reasons already given.  I have also had the opportunity of referring myself to the training centre report prepared by the Commissioner of Correctional Services in relation to the 2nd accused.  I then moved on to hear the mitigations made on behalf by both Mr Beel and Mr Leung.  The following will be the sentence for both defendants. 

The facts

5.  The facts of this case are simple enough.  In relation to Charge 1, this is a domestic burglary which took place on 3 June 2010 when I found that the defendant, who happened to reside in the same public housing estate, had entered as a trespasser into Room 1131, Lai Man House, Oi Man Estate, Ho Man Tin (“the premises”).  The premises were occupied by a retired couple.  They left at around 10 am on that morning and when the wife (PW1) later returned a few hours later on the same day, she found that both the door and the iron gate were prised open.  She also found that the premises was ransacked with the following properties being missing:

(1) One Philips LCD monitor at the value of Hong Kong $1,500;

(2) One HP notebook computer at the value of Hong Kong $2,500;

(3) One Agnes B handbag at the value of HK$1,000;

(4) Cash in the sum of HK$15,000;

(5) Cash in the sum of renminbi 1,000; and

(6) One Octopus Citibank Gold Card numbered 4617-2550-0021-3253 in the name of PW2, the husband. (“the credit card”)

6.  When the police later attended the crime scene, they had been able to lift a latent fingerprint for the purpose of comparison. The said fingerprint was found on the driving licence of the husband (PW2) which was kept inside the premises all along after he last renewed his licence in 2008.

7.  After the fingerprint comparison conducted by both fingerprint experts (PW4 and PW5) in the Identification Bureau of the Hong Kong Police Force, they came to the conclusions that the latent fingerprint came actually from the right thumb of the 1st accused in this case.  As a result, the 1st accused was arrested by the police in connection with this case. 

8.  Under caution, the 1st accused denied his involvement adding that he did not know either PW1 and PW2.  He denied any personal involvement in the present case and he further said that he should be at home on 3 June 2010 as his hand was injured at that time. 

9.  In relation to the 2nd accused and on the day next to the date of the offence, (i.e. 4 June 2010) at Giordano Concepts situated at Sai Yeung Choi Street South, Mong Kok, he presented the credit card to the staff of this store to make payment for 6 pairs of socks at a total value of HK$120.  This transaction was successfully made and became the subject matter of Charge 3.

10.  In relation to the 4th charge, about 2 hours later, at around 8:10 pm and again on 4 June 2010 at Hutchison Telecommunications (Hong Kong) Limited situated at Whampoa Garden in Kowloon, the 2nd accused presented the credit card to the staff there and made payment of one mobile phone at the value of $4,980.  The transaction was also successfully made.

11.  Lastly, in relation to Charge 5, at around 9 pm on the same day, D2 was found to present the same credit card to make payment for two mobile phones at a total value of $9,476 at the Fortress situated again in Whampoa Garden, Kowloon.  This transaction however was unsuccessful.

12.  The fingerprints of the 2nd accused were found on the merchant copy of the credit card transaction slip in relation to the transaction of the 3rd charge.  CCTV record of Fortress Shop also captured that the 2nd accused was then making purchase at the shop at all material times.

13.  When the identity of the 2nd accused was established by the police, he was later interviewed on 28 January 2011 while he was serving imprisonment in Cape Collinson Correctional Institution during which he made frank admissions to his misdeed in the interview under caution.  He admitted that he had used the credit card for the 3 transactions on the day in question and he had falsified the signatures of the cardholder of the card at all material times.

14.  He mentioned that the credit card was given by a male named Ah Ming but he did not know Ah Ming’s details.  He further said that Ah Ming would give him 50 per cent of the proceeds after he had made successful and good purchase of the goods for resale and he had the mobile phones together with the credit card to Ah Ming after the incident.  But he added that he did not know the 1st accused in this case. 

15.  It was my finding this afternoon that the 1st accused was the one who left the fingerprint during the course of the burglary and that the conclusions reached by the two fingerprint experts in this case, PW4 and PW5, were unassailable and reliable.  It is my conclusion, therefore, that the 1st accused left this fingerprint during the course of burglary on 3 June 2010 as charged in the 1st charge. 

Records and Backgrounds

16.  The 1st accused is now aged 22.  He had 2 previous criminal records.  For the first record, it was a robbery offence back in 2006 for which he was given a probation of 18 months.  Almost 6 months later, he reappeared in the court again and as a result of his poor performance, his previous probation order was discharged.  Instead the court imposed a detention centre order.  According to the antecedent statement for which he had admitted, he had spent about 5 or 6 months in the detention centre and he left there in August of 2007.

17.  He is now still single.  He was born in China and he came to Hong Kong at the age of 2.  Here in Hong Kong he had received education up to Form 4 level.  Mr Beel told me that in fact at the time of the offence, he was employed as a chef in a fast food chain restaurant, earning a gross income of around $13,000 per month for which he has to contribute about $8,000 per month to the family. 

18.  In mitigation, I was supplied with two letters, one of which is a letter from the supervisor of the 1st accused and also signed by all his workmates.  All of them supported the defendant as a person with responsibility and they all wish that the court can give him a chance so that he could return to the company to work very soon.  There was also a short letter from the mother of the defendant.  The mother had expressed the wish that the court can be lenient towards her son because the mother was suffering from psychiatric disease and also diabetes and high blood pressure. 

19.  Mr Beel submitted that the usual starting point for a domestic burglary is 3 years.  If there are aggravating factors present in this case, the court will be justified to adopt a higher starting point.  Mr Beel submitted, however, that in this case there is no evidence of a professional or sophisticated planning and organization.  While there is some damage to the property, he submitted that the damage is by no means extensive and there is no large scale vandalism when the burglary took place.

20.  A most important aspect of Mr Beel’s mitigation is the voluntary offer by the 1st accused to fully restitute or compensate the damages suffered by the old couple of the premises.  Altogether the value of the stolen property, including the cash, would be in the sum of HK$21,000.  In the absence of any supporting documents or invoices submitted by either PW1 or PW2 representing the costs of repair to the door or the iron gate, I judge that a sum of $500 is reasonable in the circumstances to take care of the sum.  

21.  The 1st accused finally agreed to fully repay the HK$21,000 together with the $500 cost of repair.  The whole sum, according to Mr Beel, could be taken directly from the bail money of the 1st accused.

22.  Lastly, for my further information, Mr Beel informed the court that the 1st defendant has a girlfriend who is also in court today and the girlfriend is now 2 months pregnant. 

23.  In relation to the 2nd accused, he had 4 previous criminal records and a similar record for burglary for which he was sentenced to the training centre only fairly recently on December 2010.  In the past he has been given a probation and also he was sentenced to a rehabilitation centre.

24.  Because of the situation of the 2nd accused, I have obtained a training centre report on his behalf.  Today Mr Leung had fully explained the content of the report to the 2nd accused and urged the court to follow the recommendations expressed in the report that his client is suitable for detention in a training centre.

25.  Without being too detailed about his background, I can do no better than just to refer and reproduce the conclusion and recommendations of the training centre report.  It was stated in the report that the 2nd accused was born in a working class family.  The father was preoccupied with work and the mother was weak in parenting supervision throughout the upbringing of the 2nd accused.  His academic performance was acceptable in his primaries but the situation had gone worse after he proceeded to the secondary school, in particular, his academic performance deteriorated and he also indulged himself with excessive merriment.

26.  For his past misdeeds, the 2nd accused had been twice put on a probation order.  During the probation period, however, his performance was still far from satisfactory.  He breached the curfew requirement and even failed to attend the court hearing for his progress.  It was exactly during this missing period that he continued his lifestyle and even committed the current offences in June 2010.  Because of his poor performance during the probation and further because of his involvement in another burglary offence, the defendant therefore had been sentenced to a rehabilitation centre and a training centre in mid 2010 and December 2010 respectively.

27.  Before his current remand, the 2nd accused was actually still undergoing disciplinary training in the training centre.  The CSD officer was of the view that in order to help this 2nd accused to attain a law-abiding concept, another period of disciplinary training coupled with statutory supervision would be considered beneficial to him.  It is why therefore he is considered to be suitable for detention in a training centre.

The sentence of the 1st accused

28.  After taking into account of the record, his background and the mitigation, I came to the conclusion that this is a case which should be visited by the usual starting point of domestic burglary and that is 3 years.  I am of course sympathetic with the position of his mother and especially his girlfriend, but burglary is a serious offence which calls for a sentence of deterrence. 

29.  The 1st accused burgled the premises of PW1 and PW2 and stole valuable properties therein.  He has also caused some damages to the premises.  One of the stolen properties, the credit card, has also found its way to the 2nd accused and the 2nd accused had also used the same to make purchases in several occasions.  I make it clear, however, that as there is no clear evidence to establish that the 1st accused is the one who supplied this credit card to the 2nd accused, I would not consider that as an aggravating factor. 

30.  The 1st accused pleaded not guilty to the charge and fought his case and he lost it.  He could not be said therefore to be remorseful.  However, credit must be given to the fact that although quite belatedly, he offered to make full restitutions and to compensate fully the value of the property and the stolen cash during the course of the burglary.  Because of the actual restitution which mitigated the loss of both victims in this incident, I consider that a 4 months’ reduction is warranted in the circumstances.  In the end the 1st accused would receive a sentence of 32 months. 

The sentence of the 2nd accused

31.  As to the 2nd accused, it is clear from the report that he has adopted a loose lifestyle and he mingled with some dubious peers.  Although in the past, the court had on numerous occasions given his opportunities to reform, he simply failed to reform and once again he has let the court down. 

32.  The present case involved, as it were, the use of a stolen property obtained in the course of a burglary to make purchases.  He used the credit card to make purchase in 3 different occasions within the same day.  He also knew very well that the credit card does not belong to him and it is a stolen property.  These are all very serious conducts and misdeeds indeed.

33.  Had it not been the fact that only recently the 2nd accused were being convicted of a burglary offence and were sentenced to the training centre in the District Court and he has already begun receiving some initial phase of training, I would have no hesitation but to consider a period of immediate custodial sentence.  I am minded to follow the recommendation of the training centre report and give him perhaps this one last chance.

34.  I shall urge the 2nd accused to make use of this last opportunity to reform while receiving the training there.  There is no way that the court will again sentence him to the training centre ever again.  The 2nd accused should know that he would be looking at a lengthy custodial sentence if he venture to commit the similar offence again in the future.