HKSAR v. WONG WAI WAH

DCCC 403/2021

[2021] HKDC 1468

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 403 OF 2021

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REASONS FOR SENTENCE

1.  The defendant pleaded guilty to a charge of "Burglary" (Charge 1)  and a charge of "Attempted burglary" (Charge 2). He first burgled a public housing unit without stealing anything. A month later, he tried to burgle the same flat but failed.

Summary of Facts

2.  The premises particularized in both charges ("the Flat")  were a residential unit situated at 39^th Floor, Kan Yat House (Block 11), Yat Tung (II)  Estate, Tung Chung.

Charge 1

3.  About noon on 6 September 2020, the defendant found 2 keys ("the Keys")  at the staircase between the 38^th and 39^th Floors of Kan Yat House.  He picked them up and kept them. 

4.  About 3:00 a.m. on 7 September 2020, the defendant opened the metal gate of the Flat with the Keys and entered the Flat.  Mr. Cheng (PW1)  and his family were sleeping in the Flat.  As the defendant was searching for PS4 game discs in the living room, he heard someone walking to the living room.  He then saw a woman in the Flat and heard her screaming.  The defendant did not take away anything from the Flat and left.  The Police was alerted.

Charge 2

5.  After the incident in Charge 1, PW1 changed the lock of the Flat and installed a CCTV camera outside the Flat.

6.  About 3:52 a.m. on 10 October 2020, the defendant tried to open the metal gate of the Flat but failed.  Later on in the same morning, PW1 checked the CCTV footage and saw a male approaching the Flat.  That male looked around and inserted something into the key hole of the metal gate of the Flat.  He then rotated his hand.  He could not open the metal gate and left after a few minutes.  PW1 alerted the Police again.

Arrest and admissions

7.  About 5:30 p.m. on 19 February 2021, PW1 saw the defendant in the vicinity of Yat Tung Estate and recognized him as the intruder captured by the CCTV footage.  He immediately informed the Police.        PC 27326 (PW2)  arrived and confronted the defendant.  He admitted having gone to the Flat twice in September and October and tried to open its metal gate.  PW2 arrested and cautioned the defendant.  He admitted that he wanted to enter the Flat to steal some PS4 discs.

8.  In his video recorded interviews, the defendant admitted, inter alia, that he found 2 keys at the staircase between the 38^th and 39^th Floors of Kan Yat House on 6 September 2020.  About 3:00 a.m. on 7 September 2020, he tried the Keys on the units on the 39^th Floor starting from the Flat.  He opened its metal gate and went inside to search for PS4 game discs.  He claimed to know that the Flat had a PS4 game console and wanted to get some game discs for his own use.  He fled when he saw a woman in the Flat and heard her screaming.  In the early hours on 10 October 2020, the defendant went to the Flat again intending to take away some PS4 game discs.  He tried to open its metal gate but was unable to do so.

Mitigation & Sentence

9. The defendant is 22 and has a clear record. Defence counsel Mr. Wong informed me that the defendant is single and resides with his mother, maternal grandmother and 2 younger brothers at Kan Yat House. The defendant works as a barista earning about $14,000 per month. Recently, worrying about his sentence, he switched to working part-time with a lower income. A bundle of mitigation letters and certificates was placed before me; their contents are duly noted.

10. In mitigation, Mr. Wong submitted that in respect of Charge 1, the evidence against the defendant came solely from his confession. I had asked Mr. Wong why the defendant knew that the Flat had PS4 game discs. Mr. Wong explained that the defendant resides on the 38^th Floor (one floor below the Flat). He knew of the occupants of the Flat (but they were not acquaintances)  and noticed that they had PS4 games.

11. Regarding Charge 2, prosecuting counsel Mr. Tse informed me that according to PW1's statement, PW1 recognized the defendant at a basketball court when he was playing ball without a mask. PW1 did not, however, elaborate further the basis of his recognition. A still photograph of the intended intruder obtained from the CCTV footage of the Flat was placed before me. I accept that the image seems clear enough to support PW1's recognition.

12. In view of the defendant's background and the facts of this case, I have decided to obtain a Detention Centre Report just to keep all options open. Comments made by the assessment officer are in general positive. He considers the defendant suitable for Detention Centre.

13. I am aware of the normal starting point for domestic burglary. Although nothing was stolen in Charge 1, at least one occupant of the Flat was alarmed by the defendant's presence in her home in the early hours. Repeated visits to the same premises within a month is certainly an aggravating factor[1].

14. On the other hand, I do not consider the defendant to be a typical burglar aiming at money or valuable items. He found the Keys at the staircase and probably wanted to try his luck out of greed and curiosity. He searched for game discs only in the Flat but failed. Finding the keys to a flat is almost equivalent to walking past a house with an unlocked door. In a way, this case carries a slight element of "opportunistic burglary".

15. As a general principle, rehabilitation (rather than punishment)  plays an important role in reforming young offenders. I cannot overlook the defendant's need for rehabilitation. I have reminded myself that correctional institutions such as Rehabilitation Centres, Detention Centres and Training Centres exist for the benefit of young offenders. These institutions play an important role in our penal system.

16. I would not hide the fact that the defendant's age and clear record as well as the atypical features of this case played a determining role which spared him the punishment of immediate imprisonment. After careful consideration, I have decided to make a Detention Centre Order, which will be the sentence for both charges. I believe a Detention Centre Order will benefit the defendant most in terms of disciplinary training, reformation and punishment.