HKSAR v. TSE MAN HO AND ANOTHER

DCCC777/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 777 OF 2011

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Reasons for Sentence

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1.  The prosecution have brought a total of 11 charges against the two defendants in this case.

2.  Before this court, the 1st defendant pleads guilty to six charges of burglary (Charges 1 to 4, 8 and 10), two charges of attempted burglary (Charges 5 and 9), and one charge of conspiracy to burgle (Charge 11), while the 2nd defendant enters a plea of guilty to all 11 charges.

Facts

3.  The facts to which the defendants agree are as follows. 

4.  Between the late evening of 5 March and the early morning of 6 March 2011, the 2nd defendant prized open the switch panel box of the roller shutter of Sunday Pizza at Sunshine City Phase 3, Ma On Shan, while the 1st defendant acted as the lookout.  They entered the shop and took away $1,000, a mobile phone, and a notebook computer (Charge 1).

5.  In the early morning hours of 26 March 2011, the defendants broke into Big Brother Castle Kids’ Wear at Saddle Ridge Garden, Ma On Shan, and stole $1,000 and a notebook computer (Charge 2).  Further, they broke the switch panel box of Three Fortune Restaurant at Sunshine City Phase 1 and went in to steal $60,000 (Charge 3).

6.  In the early morning of 9 April 2011, the defendants prized open a window of Country Kitchen at Kam Ying Shopping Centre, Ma On Shan, and took away $13,180 from one of its safes (Charge 4). 

7.  At around 4.40am on 17 April 2011, the two defendants broke the switch panel of the roller shutter of Kong Sing Ming Kee Metal Tools Engineering Ltd at Sunshine City Phase 3, Ma On Shan, and attempted to break into the shop to steal, but they failed to gain entry (Charge 5).

8.  In the early morning of 20 April 2011, the 2nd defendant entered Totoro Supplies at Hand Cheong Court, Shau Kei Wan, as a trespasser and took away $1,000, leaving behind two fingerprints of his (Charge 6).  He further broke into Dr Lam Wai Hung’s Clinic at On Hiu Mansion, Lei King Wan, to try to steal from some drawers and the cash register without success, and left his palm print at the scene (Charge 7).

9.  On about 28 April 2011, the defendants broke into Pepita Pearland Boutique at Saddle Ridge Garden, Ma On Shan, and stole $20 (Charge 8).  Further, they tried without success to prize open a padlock of the glass door of Beauty Allure in Heng On Shopping Centre, Ma On Shan, with the intention to gain entry to steal (Charge 9).  Further still, they entered as trespassers Sunny Café at Fok On Garden, Ma On Shan, and stole $1,500 (Charge 10).

10.  On 30 April 2011, a team of police officers mounted an anti-burglary operation in the Ma On Shan area.  At about 3am on 1 May, they saw the defendants peep into a restaurant in a suspicious manner and intercepted them for enquiry. 

11.  The officers found a screwdriver and a pair of pliers in the 1st defendant’s possession.  Under caution, the two defendants admitted that they had planned to commit burglary on shops with the use of the screwdriver and the pair of pliers (Charge 11). 

12.  When the two defendants committed burglaries together the 1st defendant acted always as the lookout and the 2nd defendant would break into the shops to steal.

Conviction

13.  The court finds the 1st defendant guilty of Charges 1 to 5 and 8 to 11, and the 2nd defendant guilty of all 11 charges.

14.  The two defendants have had a clear record.

Mitigation

15.  In mitigation, counsel for the defendants put forward the following matters for the court’s consideration.

(1) The 1^st defendant

16.  Three clemency letters have been handed up to court, showing the defendant has reflected deeply on his past conduct and is determined to turn over a new leaf, and that the defendant has the support of his family and teacher. 

17.  Solicitor for the defendant stresses that the defendant co-operated fully with the police upon his arrest, and admitted to all the offences he has committed in those couple of months.  It is submitted that the defendant is truly remorseful, which is confirmed by his pleas of guilty. 

18.  The court is asked to consider the recommendation of a Detention Centre Order for the defendant, a young person of hitherto a good character.

(2) The 2^nd defendant

19.  A bundle of letters in mitigation is placed before the court.  It shows that the defendant regrets having broken the law, causing trouble to his family and the victimised premises.  In this remand period, the defendant has given a lot of thoughts to what he would do in future and is determined not to infringe the law again. 

20.  This defendant has, according to the report, no reservation in disclosing his misconduct.  This shows that he has gained significant insight into his wrongdoings. 

21.  Counsel submits that except for these offences that occurred in the course of a couple of months, the defendant has been a good teenager. 

22.  The defendant is after all only 17 years old. The court is urged to accept the recommendation of a Detention Centre Order for him.

Pre-sentence Reports

23.  In view of the defendants’ age, the court has commissioned a pre-sentence report from the Commissioner of Correctional Services, contents of which are as follows.

(1) The 1^st defendant

24.  The defendant is now 18.  He lives with his father, step-mother, and two sisters.  His father works in an engineering firm, and his step-mother takes care of the household.  The living condition is considered satisfactory.

25.  In terms of education, the defendant completed Form 4 in July 2010 and enrolled himself in a 3-year course at the Youth College of Vocational Training Centre Council, but quit after about a year.  At the time of the offences he was unemployed.

26.  The defendant’s primary school life has been unremarkable.  He liked sprinting and Taekwondo.  When promoted to secondary school, he fell behind in his studies and exhibited behavioural problems. 

27.  While doing the certificate course organised by the Vocational Training Centre Council, the defendant mingled with friends and loitered in Mongkok and Ma On Shan areas. 

28.  He said he committed these offences out of greed, not realising the serious consequences. 

29.  The defendant has no triad background and has never tried dangerous drugs.

30.  The Rehabilitation officer is of the view that the defendant is suitable for detention at the Rehabilitation Centre, the Detention Centre, and the Training Centre, and that the Detention Centre is recommended in view of the defendant’s attitude and behaviour.  The Young Offender Assessment Panel supports the Rehabilitation officer’s recommendation.

(2) The 2^nd defendant

31.  The defendant is 17 years of age.  His father is the manager of a factory, and his step-mother is a housewife.  His living condition is described as fair.

32.  At primary school, the defendant’s performance was acceptable, and no behavioural problem was noted of him.  However, the defendant became somewhat mal-adjusted to his secondary school life.  His teachers found him exceptionally talented in handball and had him recommended to the Hong Kong Handball Youth Team.  The defendant concentrated his effort in handball practice and competition at the expense of his studies. 

33.  In the end, he had to change to another school to continue his Form 4 studies, where he picked up basketball and volleyball for leisure.  He frequented basketball and volleyball courts to mingle with teenaged friends. 

34.  He committed the 11 offences because of playfulness and for money to spend.

35.  The defendant has no triad connection and has no history of drug abuse. 

36.  The assessment officer considers the defendant suitable for the Rehabilitation Centre, the Detention Centre, and the Training Centre, and recommends a period of detention at the Detention Centre for him.  The Young Offender Assessment Panel concurs in this recommendation.

Discussion

37.  Hong Kong gives high priority - and it is in the public interest to do so - to the protection of commercial premises from unauthorised invasion.  Burglary committed at those premises causes disruption of business and inconvenience to the victimised operators. 

38.  Prevalence of this offence would give Hong Kong, an international city of commerce, a bad name.  Unfortunately, burglary has become all too common; a deterrent sentence is called for.

39.  The Court of Appeal has provided a sentence guideline of two years and six months’ imprisonment for burglary committed in non-residential premises. 

40.  In the instant case, the two defendants have engaged in a series of burglaries, actual and attempted, in commercial premises at different localities and were arrested when they were about to commit yet another such burglary.  The total loss amounted to some $70,000. In the normal course of events, an overall starting point between four years’ and four and a half years’ imprisonment would be appropriate.

41.  The two defendants are young persons.  They have pleaded guilty to the charges, showing remorse and saving court’s time. 

42.  Their separate upbringings exhibit surprising similarities: firstly, their parents were divorced; secondly, when they were young, they were taken care of by their grandparents; thirdly, their primary school life was un-remarkable; and fourthly, they both show particular aptitude and interests in sports.  Apart from these offences, they might just have been ordinary teenagers, not very much interested perhaps in academic pursuit.

43.  It is an international norm that a prison sentence should be imposed on young persons only as a last resort.  Hong Kong adheres to this international standard (see section 109A of the Criminal Procedure Ordinance, Cap.210).  The court agrees that every favourable consideration should be given to the rehabilitation of the two defendants.

44.  The Rehabilitation officer and the Young Offender Assessment Panel recommend a Detention Centre Order.  While a prison sentence can be avoided, the court is of the view that a Detention Centre Order would not be adequate to reflect the overall criminality of the series of burglaries. 

45.  On the other hand, the Training Centre has the distinct advantage in that the defendants can acquire useful skills to enhance their chances of a regular employment.

46.  The court finds that the defendants’ case should be disposed of by way of a Training Centre Order.

Order

47.  For each of the following charges of which the 1st defendant stands convicted, namely, Charges 1 to 5 and 8 to 11, he is sentenced to detention at the Training Centre, to be served concurrently.

48.  For each of the 11 charges the 2nd defendant is found guilty of, he is sentenced to detention at the Training Centre, to be served concurrently.