HKSAR v. WONG TSZ WA

DCCC 904/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 904 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to three offences of burglary which took place between 1 and 3 February of last year. They all occurred at the Bowrington Road Market in Wan Chai and they all involved the stealing of boxes of cherries, a total of 45 boxes in all.

2.  The first offence was committed by the defendant with others, and the second and third offences, the defendant procured people to commit the offence.

3.  The defendant has agreed the facts of these offences.

4.  The offences occurred at and what has been agreed is there were two separate fruit stalls in the Bowrington Road Market and those fruit stalls were rented premises inside the market which were used as storage rooms.  Locks were placed on the doors of the fridges inside the storage rooms and these two rooms were Shop 35 and Shop 13.  The public is not allowed to enter into them without the authorisation of the owner.  And it is that element of trespassing that made these offences burglaries.

5.  The facts show that on 1 February 2016, 18 boxes of cherries valued at $6,780 went missing from Shop 35.  The door of the fridge inside that room was not locked at that time. 

6.  On 2 February 2016, 30 boxes of cherries went missing from the fridge of Shop 35 and they were valued at around $11,400.  And again the door of the fridge was not locked at that time either.

7.  The final offence occurred on 3 February 2016. The fridge was locked at that time inside Shop 13 and two gentlemen whom the defendant had procured were seen to stand next to (seven?) boxes of cherries valued at $2,100.  The key to the fridge in Shop 13 was found on one of the people who had been procured by the defendant. 

8.  The defendant was located and arrested and 17 boxes of cherries were recovered from his residence and they had originally been inside Shop 35. 

9.  The defendant later admitted that he was a former employee of one of the fruit stalls and knew the fridges at the relevant shops were unlocked.

10.  On 1 February 2016 he stole about six boxes of cherries from Shop 35 and sold them. 

11.  On 2 February 2016 he instructed one of the gentlemen called Fong to take cherries from Shop 35.  He gave Fong $2,000 for this.  Some of the cherries were sold. 

12.  And on 3 February 2016 he gave the key to the fridge of Shop 13 to this person called Fong.  He had obtained that key during his employment and not returned it.  He told Fong to take the cherries from Shop 13 and offered to pay him for it.  He had done this theft of cherries because he did not have enough money to spend and he had used all the money received from selling the cherries.

13.  That is the essence of the offence.  Really, these are thefts.  They are qualified as burglaries because of the element of trespassing, but that is a package in which essentially these offences of theft can be found.  The gravamen of the offence lies in the stealing from using his inside knowledge to steal these items and also using the key that he had taken.  As far as the entry into the premises are concerned, there was no need to break in, the doors were open and the offences were committed at the time when it is likely that nobody else should be around. 

14.  And as far as the defendant is concerned, he is only 20 years old.  He has a clear criminal record. 

15.  Because of his young age, relatively young age, and clear record, I obtained reports from the Correctional Services Department to see if there is any other way of dealing with him than by way of an immediate custodial sentence.  The probation services described him as a naïve young adult dropped out of school at Form 3, who married young, set up his own home and raised a baby son whilst on the threshold of adulthood.

16.  The defendant was a victim, as it were, of parental negligence.  He had underachieved at school and was impulsive and failed to hold down stable jobs.  The probation services saw that the defendant could see the opportunity provided by the fruit stall proprietors and had exploited it. 

17.  The similar conclusion is reached by the Commissioner of Correctional Services and finds that the defendant is having a weak law-abiding concept, unstable at work, leisure involving frequenting at amusement game centres, even becoming a member of a triad society in December 2011. The defendant has a carefree attitude and weak law-abiding concept.  They think that his law-abiding concept needs strengthening and see the way to do that is a period of disciplinary training coupled with statutory supervision.

18.  Now I turn to the appropriate sentence for these offences.  These offences are properly charged burglaries.  The offence of burglary does in fact have a guideline sentence and a person of clear record, after trial, can expect a starting point for sentence of 30 months’ imprisonment where there is a burglary of a non-domestic premises.   In respect of this offence, there are no particular aggravating factors.  There is a mitigating factor, the defendant has pleaded guilty.  And I have to decide whether to take that approach is the right approach for this defendant.

19.  The first point to be made in this case is the defendant is between the age of -- he is not as yet at the age of 21.  There are other ways of dealing with him available to the court, particularly a rehabilitative sentence such as training in a detention centre which involves a rehabilitation programme and also aftercare supervision.  The other factor is the defendant’s clear record.  And the third factor is the nature of these burglaries which are in their real essence opportunistic thefts.  To treat them for sentencing as pure burglaries may well be inappropriate. 

20.  When I take all these factors into consideration, what I believe for this defendant and also for the community at large is that he needs disciplinary training.  He is a young man with a family.   He has a loose working pattern and a weak law-abiding concept.  That needs to be dealt with and the only practical way I can see of dealing with that in terms of sentencing is to send him to a detention centre.  In that way the public may well be protected from him reoffending in the future.   What I shall order is on each of these charges the defendant be sent to a detention centre.