HKSAR v. WHITE NATHAN AND ANOTHER

DCCC 284/2021

[2021] HKDC 850

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 284 OF 2021

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REASONS FOR SENTENCE

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1.  Both defendants plead guilty to a joint charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.  Full details of the offence are set out in the facts admitted by the defendants.  In summary, this is a non-domestic burglary case which took place in a restaurant situated in Wanchai (hereinafter called “the Restaurant”).

3.  The Restaurant has a wooden door secured with a lock.  Mr SARYANU Ajay Kumar is the manager of the Restaurant (hereinafter called “the Manager”).  At around 2338 hours on 30 September 2020, the Manager closed the Restaurant and secured the wooden door before leaving.

4.  At around 0937 hours on 1 October 2020, staff of the Restaurant informed the Manager that the door was open and the lock was damaged.

5.  The Manager returned to the Restaurant and discovered that 5 bottles of liquor with a total value of HK$1,465 (hereinafter referred to as “the Stolen Properties”)  had gone missing from the bar shelf of the Restaurant.  The cost of replacing the wooden door was HK$58,000.  Case was reported.

6.  CCTV captured that on 1 October 2020, between 0108 hours and 0113 hours, both defendants entered the Restaurant via the main entrance and took the lift to 2/F.  Both defendants broke the door flush bolt and opened the main door, entered the Restaurant, and proceeded to the area where bottles of liquors were kept, took the Stolen Properties and left via the same route.

Criminal records and background of the defendants

7.  Mr Surman on behalf of the 1^st defendant submitted that the 1^st defendant was born and has grown up in Hong Kong.  He is 18 years of age and is of clear record.

8.  His father is aged 55, and his mother is aged 59, and he has 1 elder sister who is a student.

9.  Mr Surman stressed that the 1^st defendant is a good student and has consistently achieved good grades, excelling in school not only academically but also in extra-curricular activities, and his good academic results have allowed him to gain conditional admission to two institutions overseas.

10.  Ms Tsang on behalf of the 2^nd defendant submitted that the 2^nd defendant was born and has grown up in Hong Kong.  He is 18 years of age and is of clear record with a caution under the SP’s discretion scheme.

11.  His father is aged 52, and his mother is aged 50, and he has 1 elder brother, 1 younger brother and 1 younger sister who are all students in the UK.

12.  The 2^nd defendant was also diagnosed with Attention Deficit Disorder (ADD) and Dyspraxia was arranged to attend special need classes in the boarding school to help him with his learning difficulties.

Mitigation

13.  In mitigation, Mr Surman emphasized the fact that this is a clear case of a single act out of character for the 1^st defendant, who is of clear record prior to this incident, and Mr Surman submitted and selected 18 reference letters to support the good character of the 1^st defendant.

14.  Mr Surman also submitted that the goods (ie 5 bottles of alcohol) stolen were of relatively low value (HK$1,465), and that there is no violence, no vandalism aside from minor damage to the door upon entry.

15.  Mr Surman pointed out that the 1^st defendant was only 17 years old at the time this offence was committed, Section 109A of the Criminal Procedure Ordinance (Cap 221) (“CPO”)  therefore applies:-

(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.

16.  Mr Surman submitted that burglary is not an excepted offence by Schedule 3 of the CPO though it is a serious offence, and that Community Service Orders have been ordered in lieu of custodial sentences for burglary (see: Cross and Cheung, Sentencing in Hong Kong at §8-24), where there were exceptional circumstances or, alternatively, where the 6 factors in HKSAR v Chow Chak Man [1999] 3 HKLRD 37 are satisfied.

17.  Mr Surman emphasized that the 1^st defendant not only satisfied all 6 factors which would deem a Community Service Order appropriate in this case, there are also very exceptional circumstances in this case which the court must consider in sentencing the 1^st defendant.

18.  Mr Surman asked the court to consider that the 1^st defendant had pleaded guilty and had been having the pressure of this case hanging over his head, knowing his whole future lies in the balance, and depending upon the outcome of this case, he is set to study in a good university overseas, starting September 2021.

19.  In mitigation, Ms Tsang submitted that as shown by the series of CCTV footages, the two defendants were rather inebriated at the material time, and that the offence was not pre-meditated.

20.  As shown in the CCTV clips, they did not bring any tools with them when they took the lift up to the building, and the door of the Restaurant was not well secured and it was easily opened after the door handle was rattled a few times.

21.  Ms Tsang further submitted that the 2^nd defendant accepts full responsibility for his immature and reckless behavior, mostly for putting himself under the influence of the alcohol, which was the direct cause for his lapse of judgment, hence the trespassing and the taking away of the bottles of alcohol from the Restaurant.  He is extremely shameful of what he has done and he is also very remorseful.

22.  Ms Tsang also asked the court to accept that the 2^nd defendant is not a dishonest person by his nature, but a teen who needs more guidance to be mindful of the consequences of his actions. 

23.  Ms Tsang further referred the court to a number of authorities and asked the court to consider imposing a non-custodial sentence.  She emphasized that the 2^nd defendant is truly remorseful for his recklessness and this is reflected in his guilty plea.

24.  He is willing to pay HK$59,465 as compensation for the damage caused to the Restaurant.

25.  Ms Tsang also asked the court to consider the good character and future prospect of the 2^nd defendant and give the 2^nd defendant an opportunity so that he could turn a new page with his university life.

Sentencing considerations

26.  The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment.

27.  In respect of the aggravating feature, 2 or more persons committing the offence can, in some situations, be considered an aggravating factor.  However, in this case the amount taken was not high and compensation had been paid to the victim by both defendants.

28.  I am also of the view that the burglary was not sophisticated nor was the defendant a ‘career’ burglar.  In fact, having watched the relevant CCTV clips, my view is that there is an element of opportunity in their hoping that the door of the Restaurant could be opened with bare hands by force.

29.  Unlike most of the burglary cases, where the burglar usually looks for valuables after successfully breaking into the premises, the two defendants in the instant case, after entering into the Restaurant immediately looked for bottles of liquor and left the Restaurant after getting the bottles.

30.  My view is that there was no heavy instrument or equipment involved, no goods of high value was targeted, and this is an opportunistic burglary, rather than a carefully planned and organized one.  I accept that this is an isolated incident out of character for both defendants.

31.  In light of the fact that both defendants are under 21 years old and by virtue of section 109A(1) of the Criminal Procedure Ordinance, Cap 221, I adjourned the case so that pre-sentencing reports could be called for.  These reports are now available.

32.  I do bear in mind the classical principles of sentencing and balance amongst the need for rehabilitation, retribution, deterrence and prevention.  Whilst rehabilitation for a young offender is always an important consideration, and it also serves the interest of the community, the need for punishment of the offender and deterrence of others must be given due regard.  The defendants would have been fully aware of the gravity of what each was doing and the risks that would be involved if apprehended.

33.  I have also borne in mind the length of imprisonment each defendant is likely to receive had he been over 21.  On the other hand, I cannot overlook their ages and the need for rehabilitation.  Their relatively young ages, clear records and personal circumstances have played a significant role in determining sentence.  I am of the view that both of them are reformable.  They each have supporting families who will render support – these proceedings have been a wakeup call not only for the defendants but their families as well.

34.  Both defendants had received favourable comments from the respective probation officers who prepared the reports and probation order were recommended to both defendants.

35.  In view of the respective defendants’ young age, clear record and their respective plea of guilty to the charge, I am prepared to adopt the recommendations made in the respective Probation Officers’ reports in respect of each defendant.

36.  The 1^st defendant is placed under the supervision of a Probation Officer for 12 months, with the following special conditions:-

(a)  he shall be of good behaviour and keep the peace;

(b)  he shall keep in touch with the supervising probation officer;

(c)  he shall receive scheduled/unannounced visits from the supervising probation officer at his place of residence;

(d)  he shall reside and study/work as directed by the supervising probation officer; and

(e)  he shall submit himself to random urine tests and receive and complete any forms of drug treatment and rehabilitation programme as and when directed by the supervising probation officer.

37.  The 2^nd defendant is also placed under the supervision of a Probation Officer for 12 months, with the following special conditions:-

(a)  he shall abstain from all kinds of dangerous drugs;

(b)  he shall receive any form of drug withdrawal treatment as directed by his Probation Officer;

(c)  he shall submit to random urine tests/samples as and when directed by his Probation Officer;

(d)  he shall participate in any community programmes/activities the Probation Officer deems conductive to his rehabilitation as and when directed by his Probation Officer.