HKSAR v. CHEUNG YU HONG AND ANOTHER

DCCC162/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 162 OF 2011

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Reasons for Sentence

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1.  There are five charges on the indictment against the two defendants. The defendants each face charges jointly and solely.

2.  The 1st defendant pleaded guilty to four charges, and the 2nd defendant pleaded guilty to three charges.  The 1st defendant pleaded guilty to Charges 1, 2 and 4, of theft, and Charge 5, of conspiracy to commit burglary.  The 2nd defendant pleaded guilty to a charge of handling stolen goods, theft and conspiracy to commit burglary, which are Charges 3, 4 and 5 respectively.

3.  The 1st defendant faces sole against him in Charges 1 of acts of theft, and the 2nd defendant faces a sole charge of handling stolen goods, in Charge 3.  The fourth and fifth charges are joint charges against both defendants of theft and conspiracy to commit burglary.

4.  In brief, the charges of theft and conspiracy to commit burglary involved the defendants, either solely or together, stealing from or conspiracy to commit burglary from two separate recycling yards.  The 2nd defendant’s charge of handling involves handling the stolen goods which the 1st defendant stole from the recycling yard.

5.  The two recycling yards were located at Mong Tseng, Lau Fau Shan, Yuen Long, New Territories.  The first one, which I will refer to as Yard A, was DD 129, Lot 911SA.  The other recycling yard, which I will refer to as Yard B, was at DD 129, Lot 1596.

6.  I turn to Yard B first. On an unknown day in September 2010 and on 5 November  and on 15 November 2010, the lock securing the gates of Yard B had been cut and Yard B was broken in to.  Wires and cash belonging to the owner, Cheung Hon-keung, in Yard B had been stolen from the open area of Yard B.  CCTV had captured two males entering Yard B on both those dates of 5th and 15 November 2010.

7.  On 3 December 2010, Yard A was under observation by police.  At about 3.10 am they saw the 1st and 2nd defendants get off a taxi, cut the padlock of Yard A with a bolt cutter and both enter Yard A.  At that time D1 took out a pair of gloves and a black mask and put them on.  He was the one who cut the padlock with the bolt cutter at Yard A.  The 2nd defendant did not wear a mask or gloves.

8.  The police followed them both into Yard A.  They found that they were both ransacking within the yard.  D1 was found in the yard area whilst D2 was found inside a hut in Yard A.  Next to D2 was a black bag containing a bolt cutter, a pair of white gloves, a black face mask, another black and white mask, and there were also five packs of black garbage bags next to the black bag.

9.  The 1st and 2nd defendants were cautioned and, under caution, the 1st defendant admitted he wanted to steal things and sell them and he asked Sai Hong, that is the 2nd defendant, to help him move the stuff.  The 1st defendant also revealed that he had done the same thing when he broke into Keung Kee, which is Yard B.

10.  Under caution, the 2nd defendant admitted he had come with Fei Jai to steal and he was only responsible for moving the stuff and calling a taxi.  It was the same last time at Keung Kee, that was Yard B.

11.  In view of these oral admissions at the scene, subsequent video recorded interviews were taken from the 1st and 2nd defendant. They admitted they had committed the offences as per the charges on the charge sheet. 

12.  The 1st defendant admitted that at about 3 am he had stolen a bag of transformers from Yard B an unknown day in September and sold them for $300. That is Charge 1.

13.  In respect of Charge 2, he again admitted that at about 3 am in early November he had stolen six bags of wire and cash of $200 from Yard B.  He then telephoned the 2nd defendant to help him move the stolen wires.  He sold the wires for $2,600, of which $800 was given to D2 as a reward.  That was Charge 2.

14.  In respect of that offence, the theft by the 1st defendant in early November, the 2nd defendant admitted he received a call from the 1st defendant asking for a taxi in the early hours of early November.  D2 therefore took a taxi to Mong Tseng and picked up the 1st defendant, who was waiting by the roadside with five nylon bags containing the wires.  He helped the 1st defendant to move the nylon bags into the boot of the taxi.  The 1st defendant told him that the five bags of wire were stolen from a recycle yard. D1 gave him $800 after the wires were sold.  That was the admission under Charge 3 for handling stolen goods by the 2nd defendant.

15.  In respect of the 4th charge of theft, the 1st defendant admitted that he had taken a black bag with two face masks, two pairs of gloves and four nylon bags to steal from Yard B again.  He telephoned the 2nd defendant and asked him to help.  They then put on gloves and masks and he lifted the 2nd defendant up to crawl over the gates.  D2 then helped D1 climb into Yard B.  They stole cash of $200 and four bags of wire.  After that, they went off in a taxi and the wires were sold to a recycle shop for $2,000 by D1 and D2 received $1,000 as a reward.  D1 admitted that he had picked Yard B as a target as he had worked there before and knew where things were stored.

16.  In respect of the 2nd defendant his admission to Charge 4, was that the 1st defendant told him that the 1st defendant planned to steal from Yard B and asked him to help get a taxi to move the stolen goods.  D1 had given him a mask and he was lifted up through the gap of the gates of Yard B by the 1st defendant.  He then found a stool for D1 to gain entry.  They stole wires inside Yard B, and when the wires were sold, D2 received $1,000.

17.  It was admitted as part of the facts that the 1st defendant was employed as a part-time worker by the recycling yard B’s Mr Cheung Hong-keung  between April and July 2010.

18.  Further as a matter of background of this case, the 1st and 2nd defendants were originally represented by Mr Henry Chiu Tuen-ting, a solicitor, but as of today, the date of sentence, there has been a change of solicitor.  Mr Chiu was discharged by the Director of Legal Aid Mr John Beukema of Littlewoods has replaced Mr Chiu by appointment of the Director of Legal Aid today for today their date of sentence.

19.  The 1st and 2nd defendants are aged 25 and 17 respectively and both have clear records.  The defendants pleaded guilty before me on 25 March 2011. 

20.  In view of the 2nd defendant’s young age and clear record, I adjourned their sentence and called for reports.  They were Rehabilitation Centre, Detention Centre, Training Centre and Young Offenders Assessment Panel Report.  In agreement with Mr Chiu, as he then was acting for both defendants, the 1st defendant’s sentence was adjourned to the same day as the 2nd defendant.

21.  On the return date on 15 April for sentence, I received a memo from Mr Wong Wai-hung, Chairman of the Young Offenders Assessment Panel, informing me that the panel had met on 11 April to consider the 2nd defendant and recommended this court to adjourn for a further three weeks pending a probation officer’s report to consider the suitability of open supervision with residential training for the panel’s further consideration.

22.  I acceded to his request and adjourned sentence to my first available date, which was 4 May 2011.

23.  On 4 May, a probation report was before the court.  However, on that day, matters arose whereby Mr Chiu requested that he recuse himself from representing the defendants as he could not protect the interests of the defendants and for that reason I adjourned the case for Mr Chiu to seek the Director of Legal Aid’s instructions, and I have now today, some three days’ later, on 9 May, Mr Beukema before me representing the defendants on mitigation.  He has mitigated fully and thoroughly now on behalf of the 1st and 2nd defendants and I have taken into account all that he has had to say in mitigation.

24.  In respect of the 1st defendant, he is 26 and lives in a public housing unit at Tin Shui Wai with his father.  Both his parents are here in court today and they have suffered some financial difficulties at home.  His father suffers from diabetes and high blood pressure.  I am told that his father has been declared bankrupt.  His sister is a university graduate but is now paying back university loans. 

25.  The 1st defendant studied up to Form 3 and has a lifesaving certificate, to which he worked as a lifeguard between 2002 and 2005.  He also worked as a restaurant and delivery worker.  After receiving a security permit, he also worked at Hong Kong Airport and some private places.

26.  As agreed, he worked part-time between April and July at recycling Yard B.  However, after his employment thereat, he remained unemployed until 3 December, when he was arrested and remanded for the present offence, Charge 5.  He is not a drug addict, not a triad member, and I am told does not drink or does not smoke.

27.  Mr Beukema has urged upon the court the defendant’s clear record, that he was young and naïve, that he is remorseful for his misdeeds, and he clearly regrets the commission of this offence as he has disappointed his parents and got D2 into trouble.  He is therefore determined upon release to straighten out his life and start anew.

28.  Mr Beukema has rightly referred me to the usual sentence for commercial burglaries even though the offence is one of conspiracy to commit burglary, as the premises concerned are commercial premises, being a recycling yard, and the usual starting point for that offence is one of 2½ years’ imprisonment.

29.  He accepts that the other offences committed by the 1st defendant were separate and distinct but he asks the court to take into account that they were committed in a very short time of each other and asked the court to give as much a concurrent sentence as possible.

30.  I turn now to the 2nd defendant.

31.  As mentioned, 2nd defendant, I have before me a Detention Centre, Rehabilitation Centre, Training Centre, probation officer and an assessment by the chairman of the Young Offenders Assessment Panel reports.

32.  The 2nd defendant, being 17 years of age and of clear record, is mentally and physically fit for all three centres - Detention, Rehabilitation and Training Centre.  It is recommended by the Commissioner for Correctional Services that Detention Centre is more suitable for him.  The probation officer’s report does not recommend probation.  The Chairman of the Young Offender’s Assessment Panel, Mr Yuen Shu-fan this time, not Mr Wong, recommends a probation order of 24 months.

33.  Mr Beukema has urged this court to place the 2nd defendant on probation.  He relies on the fact that the 2nd defendant committed this offence out of greed and misplaced loyalty to the 1st defendant. 

34.  The report shows that D2 is an immature young man, easily led by older, more mature friends.  He is in a destructive relationship with a woman older than him and therefore counselling would be most beneficial for him to assist him to end this relationship or have a less-destructive life for himself or his girlfriend.

35.  I have considered all the contents of the report and I shall not go into the detailed background of the 2nd defendant.  Sadly, his mother deserted him sometime in 2000 and he lives with his father, who has been busily engaged at work and therefore the defendant has been left unsupervised.  He ceased schooling in October 2009 and did not further his studies thereafter. 

36.  He had worked on and off as a part-time porter in a chemical factory in Yuen Long from November 2009 to November 2010, then changed to move to be a junior hairdresser in a salon in Yuen Long, earning approximately $2,000 a month. 

37.  He had met the 1st defendant in a cyber-café and he also met his co-habitant, who was older than him, aged 21, who is an unwed mother of two children and also pregnant with a third by the defendant. 

38.  The probation officer has given a very detailed account of that relationship and matters relating to the babies and I shall not go into that in my reasons for sentence.

39.  The probation officer recognises that D2 has been what he called “a nobody’s” child, lacking the care of parents after a divorce in 2000.  He recognises he is an easily-led teenager with a weak law-abiding concept.  He does not approve of the relationship that he is now having with the co-habitant. 

40.  He recognises that the defendant has received counselling based intervention and a period of residential training at the Family Service Centre.  He had also been admitted into a special boarding school for problematic students in his early teens.

41.  The probation officer’s report is not favourable and states that despite the clear record of the defendant he strongly disagrees with the recommendation of the Chairman, Mr. Wong, and deems any counselling or residential training in open setting not at all conducive to the rehabilitation of the accused and is thus not recommended.

42.  I had informed Mr Beukema that when I adjourned initially for reports I had not called for a probation officer’s report.  I had considered the seriousness of the offences and had considered that probation was inappropriate.  However, I received a memo from the Chairman of the Young Offenders’ Assessment Panel, Mr Wong, asking the court to consider a probation officer’s report as the panel might suggest probation for the 2nd defendant with residential training.  I therefore acceded to the request, making it clear that all sentencing options were open to me despite me calling for a probation report.

43.  The probation officer’s report, as returned, is very unfavourable to the 2nd defendant.  Nevertheless, quite surprisingly, the Chairman of the Young Offenders’ Assessment Panel disregards the contents of the report and suggests and recommends that supervision is effective to the 2nd defendant and recommends that the 2nd defendant be put on probation of 24 months.

44.  I am of course very well-aware of the fact that the defendant is 17 years of age, of clear record, and that I should in these circumstances think of a rehabilitative sentence as well as a punitive sentence, if necessary. 

45.  I am sentencing the defendant for the offences to which he has committed before me and not for other mishaps or problems he has in his life.  As my indication the first time I adjourned this case was that these offences were considered to be of a serious nature, I therefore did not call for a probation report then.  If D2 was an adult, he would be looking at a fairly lengthy period of imprisonment.  I am also clear that the courts should not send young offenders to prison if another sentence is appropriate.

46.  The defendant has of course shown his remorse. He has pleaded guilty, and pleaded guilty at the outset when he was cautioned by the police officers. 

47.  I am also aware of the fact that he is of course charged with the 1st defendant and there should be no clear and obvious disparity in sentence between the two.

48.  Taking into account all these matters and, of course, giving considerable consideration to his background, I do consider that probation supervision is an inappropriate sentence. 

49.  I have taken into account the contents of the Commissioner of Correctional Services report and, in order to strengthen the defendant’s law-abiding concept, I agree that a term of disciplinary training coupled with statutory supervision would be beneficial to him.

50.  2nd defendant, therefore after the assessment of your behaviour and attitude whilst on remand, and taking into account the seriousness of the offences I will follow the recommendation and sentence you to detention in a Detention Centre for Charges 3, 4 and 5. 

51.  1st defendant, I have gone through your mitigation already. 

52.  I have taken into account that these four offences were separate offences committed on different days and the offences were committed within a three month period between September 2010 and 3 December 2010.  The first theft was in September, the next two offences were committed on 5 November and 15 November, 10 days apart, and again within two weeks, in December, so in a period of three months you had gone on a crime spree, targeting these recycling yards and bringing with you the vulnerable 2nd defendant. 

53.  You had targeted Yard B because you had worked there previously and knew where the goods would be stored.  It is fortunate you were not working there at the time otherwise this would be considered even more serious as this would be a breach of trust.

54.  You have until now, 1st defendant, as I see it, been employed in quite decent jobs and you look like a decent young man.  You have come to court suitably dressed in a suit and of good appearance.  I hope that you will keep to your word and when you are eventually released to straighten your life out and lead a law-abiding life.  You are a young man and have a whole life ahead of you.  Do not throw it away any further.

55.  1^st Defendant, I have taken into account the offences involved and the principle of totality. Bearing in mind that some of these offences were committed on different days and are separate offences, I consider the sentences should be partly concurrent and partly consecutive.

56.  The sentences for the charges will be as follows.

57.  On Charge 1, 2 and 4, those are charges of theft, I would have taken a starting point of 12 months’ imprisonment after trial, but giving you full credit for your plea of guilty, I reduce that term to one of 8 months’ imprisonment.

58.  For the fifth charge of conspiracy to commit a burglary, as I stated earlier in my reasons, that starting point had I convicted you after trial would have been 2½ years’ imprisonment.  However, giving you full credit for your plea of guilty, that term will be reduced to 20 months’ imprisonment.

59.  For the partly consecutive sentences, 1st defendant, I shall order 2 months on each Charge 1, 2 and 4 to run consecutive to Charge 5, and that will mean you serve a total of 2 years and 2 months’ imprisonment.