HKSAR v. YAU RONNY

DCCC 173/2020

[2020] HKDC 1187

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 173 OF 2020

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REASONS FOR SENTENCE

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Charges

1.  Defendant pleads guilty to Charge 1, aggravated burglary, and Charge 2, possession of a dangerous drug which was 0.33 gramme of herbal cannabis.

Facts

2.  The burgled premises was a residential building, namely, Tower 3 of Nan Fung Plaza in Tseung Kwan O (“the Building”).

3.  Around 1 am on 20 September 2019, a resident at 19th floor of the Building heard someone tampering his iron gate and wooden door lock.  Looking through the viewer, he saw his iron gate had been opened and a suspicious person was standing outside his flat.  He then alerted the security control room of the estate.

4.  About 25 minutes later, another resident, a 23-year-old lady living at 9th floor of the same Building, heard some noises outside her flat.  She found the door of her flat being opened but closed immediately.  Someone then knocked on the door.  The lady opened the door and saw Defendant standing outside. Defendant asked the lady how to get to the next block.  He also asked the lady to let him use her toilet and to let him use her mobile cable to charge his mobile phone.  The lady did allow Defendant to go inside her flat, and surprisingly, the two chatted for about 20 minutes.  Defendant then left the flat. 

5.  The security control room of the estate had been alerted by the first resident.  Two security guards went to the ground-floor lift lobby to wait for Defendant to come out of the lift.

6.  When the lift door opened, Defendant saw the security guards.  He attempted to flee but was subsequently caught by the guards.  During the chase, a pair of pliers fell out of defendant’s pocket.

7.  The police came later.  They found inside Defendant’s rucksack an airgun, 0.31 gramme of herbal cannabis and a grinder containing 0.02 gramme of herbal cannabis.  The total weight of cannabis in question was thus 0.33 gramme.

8.  Under caution, Defendant told the police that he wanted to see if there were any unlocked doors in the Building.  He would go inside to see if there were valuable items.  He said this was his first time.  Defendant said the pliers were for fixing his bike and he forgot to leave the airgun at home.  He also told the police that the cannabis was for his own consumption.

9.  Back in the police station, Defendant further told the police that he wanted to find things to exchange for money.  He had been to the 9th floor, 11th floor and the 19th floor of the Building.  However, he failed to get into any flat except the lady’s place.  Defendant told the police that the cannabis was bought for $600 and he took out the airgun for play.

10.  Firearms examiner found the airgun was capable of discharging plastic balls with a muzzle energy of less than 2 joules.

Record

11.  Defendant was born in July 2001.  He is now aged 19.  He has a clear record.

Mitigation

12.  Defence Counsel says Defendant was 18 years and 2 months old when he committed the offences.  He is now 19 years and 4 months old.  He lives with his parents.  He has not completed Form 3.  After leaving school, he had done various jobs.

13.  Counsel says Defendant has been on bail after his arrest.  He is currently working in a transport company.  The employer has fond opinion of him and still keeps him in the job after learning of the present case.

14.  Counsel says Defendant is deeply remorseful now.  He has tried to improve himself and enrolled with a language course, doing pretty well.

15.  Counsel says Defendant has gained insight of his misdeeds.  He has good family support for rehabilitation.  He is very likely to turn a new leaf. Counsel asks the court to impose a lenient sentence on Defendant.

16.  Counsel says the facts of the case are special.  Defendant had no sophisticated plan for his misdeed that night. He had not stolen anything.  His breach of the law on that occasion was totally out of character.  Counsel asks the court to depart from the norm in sentencing Defendant.

17.  Counsel says although Charge 1 is aggravated burglary, Defendant in fact had no intention to use the airgun to commit any crime.  He is guilty of burglary and because he had the airgun with him, so in law he is guilty of aggravated burglary.  Counsel says Defendant was under the influence of drugs that night.

Report

18.  After hearing counsel’s mitigation and considering Defendant’s age, I called for a training centre report to see if a training centre detention is suitable for him.  I also called for a DATC report to find out if Defendant has been addicted to any kind of dangerous drug.  However, I have made it clear that the final sentence cannot be detention in DATC.

19.  The Correctional Services Department has prepared a consolidated report. The report says Defendant is not a drug addict and training centre detention is suitable for him.

Further Mitigation

20.  Counsel says Defendant accepts the contents of the report.  He understands training centre detention and he is willing to go to training centre.

Sentence

21.  Defendant pleads guilty to Charge 1, aggravated burglary, and Charge 2, possession of dangerous drug.

22.  Charge 2 involves only 0.33 gramme of herbal cannabis.  A fine would be sufficient.

23.  Charge 1, aggravated burglary, is far more serious.  Defendant had an airgun with him when he entered the residential Building with intention to steal.

24.  Defendant admits that he had been to three floors of the Building.  The evidence showed that he had tried the gates and doors of two units in that Building.  He was unable to enter the flat on the 19th floor.  For the premises on the 9th floor, his act alerted the lady inside who opened the door to let defendant in to use the toilet and to charge his mobile phone.  The two even talked for about 20 minutes.  Nothing sinister happened during that period.  It can be said Defendant was a mild burglar showing no signs of aggression. Counsel says Defendant was under the influence of drugs.  It seemed so.

25.  Defendant told the police that he brought the airgun out for play.  The airgun was of a low muzzle energy.  Prosecutor tells the court that it was unloaded at that time.  There were no pellets found in the gun or in Defendant’s possession for firing.  I am told that box of steel balls shown in Photo 2 of Album B is a kind of toy.  Photos 3 to 5 of the same album also show Defendant had some toy figures with him at that time.

26.  I accept Defendant had no intention to use the airgun for burglary at all but in law it is still an offence of aggravated burglary.  However, the case is really not much different from a normal domestic burglary case.

27.  The usual starting point for domestic burglary is 3 years’ imprisonment.  That can be adjusted according to the facts of the case.

28.  The airgun aggravation would justify an uplift of 3 months.  In the present case, however, Defendant has a clear record. He is young and his burgling acts involved no sophisticated plan or use of equipments.  All these mitigation factors justify the uplifted starting point to be lowered down to one of 2 years and 9 months’ imprisonment, if a prison term has to be imposed. So after plea, if a prison term has to be imposed, it would be one of 22 months.

29.  However, Defendant is young.  I certainly can send him to prison without considering any report because aggravated burglary is an excepted offence under Schedule 3 of Cap 221, the Criminal Procedure Ordinance.  Yet having considered all the facts, Counsel’s mitigation and the CSD report, I find the better option is to send Defendant to the training centre where the maximum stay is 3 years.  The average stay is around 18 months.  After that, there is a supervision of 3 years.  That length of detention will be comparable to a prison term of 22 months, which actually might be shortened in the prison, depending on the prisoner’s good behaviour during detention.

30.  Sending Defendant to the training centre will benefit him more than to let him mix with mostly adult prisoners.  The society would also be better served if such young offender can be given rehabilitation.  I thus order Defendant to be detained in the training centre for Charge 1.  For Charge 2, a fine would be sufficient.  I adopt a starting point of $1,500.  After one-third discount, I fine Defendant $1,000 for the 2nd charge.  And that fine can come out of his bail.