HKSAR v. CHOI KA HON AND ANOTHER

DCCC1132/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1132 OF 2010

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Reasons for Sentence

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1.  D1 and D2 you have each pleaded guilty to a joint offence of Burglary contrary to section 11(1)(b) and (4) of the Theft Ordinance Cap.210. You each admitted the facts and I convicted you.

2.  The facts placed before me are as follows.  PW1 lived at Flat 506, 4th Floor, Block B I-Feng Mansion, 237A To Kwa Wan Road, with her husband and daughter, the daughter being PW2. 

3.  On 15 April last year, PW2 was at the playground at Ka Wai Estate and told her friends, which included you, D1, that her family would visit the Mainland for two days.  D1, you had visited her home on 10 April.

4.  At approximately 6 pm on 16 April of last year PW1 secured the premises and left home with PW2 and her husband.  On 18 April, at approximately 7 pm, PW2 returned home alone to Hong Kong.  She found property missing from the premises.  Suspecting burglary she called PW1 and the police.  PW1 came back to the premises at 8 pm.  She found signs of prizing on the iron gate and wooden door.  Property valued at $10,500 was missing.  That property comprised the following: 

1. A silver coloured safe box valued at $600 containing $2,000 and PW2’s passport. That was taken from the bedroom.

2. A notebook computer valued at $7,000 from the living room.

3. A USB modem valued at $620 from the store room.

4. 20 packets of cigarettes valued at $300 from the living room.

5.  D1, you were arrested on 13 August of last year.  Under caution you admitted committing the offence with D2 and an unknown male.  D2, you were arrested on 14 August of last year and admitted the offence with others.  With your assistance the safe box, broken into pieces, was recovered.  You, D1, gave three video recorded interviews and you, D2, two video recorded interviews.  In essence you both admitted the offences and explained what part that each of you had played. 

6.  The unknown male did not himself go to the premises, he suggested the burglary.  You, D1, described how you gained entry. You took the notebook computer and you and D2 a few packets of cigarettes.  You and D2 also took the safe box.  You wiped the premises before leaving.  You, D2, and an unknown male, then went to the Reservoir Playground where the unknown male broke the box, while you, D2, acted as look out.  The money was shared out.  D1, you said you got less than $100.  You said the three of you then went to Ap Liu Street and sold the notebook for $1,500, each getting $500.  As we know the broken safe box was recovered. 

7.  D2, you told a very similar story except that you got two red packets containing $20 and that you sold the notebook for $1,000 and you received $250.  D1, you admitted to one previous conviction which, in fact, was subsequent to the commission of this offence.  In fact, at the time of the commission of this offence, you had a clear record.  D2, you have a clear record. 

8.  In view of your ages, I adjourned for a probation officer’s background reports and Community Services Organiser’s reports.  In respect of the latter, bearing in mind that this was a burglary of domestic premises, I reserved to myself the right to sentence in any way I thought just no matter what the recommendations were.  D1, you were recommended for community service but you, D2, were not.  Logical and sound reasons are given for the recommendations. 

9.  D1, on your behalf, Mr Leung entered lengthy mitigation based upon written submissions supplied on a previous occasion.  He informed me that you agreed with the contents of both the probation officer’s report and the Community Service Organiser’s report.  At the time of the commission of this offence you were only 18 and of clear record.  He told me that you are single and currently studying Form 4 at Caritas Charles Bath College at Tung Chung. 

10.  You reside with your parents in a village house.  Your parents are in their 40s, your father a self employed driver and your mother has quit her job as a manageress to supervise you.  She is a graduate.  He told me that you are extremely remorseful and indicating your plea of guilty as early as 29 October last.  When arrested on 13 August last year you immediately admitted the offence and disclosed D2’s role.  You took the police to various locations and explained events in full.  When interviewed, though you were represented by a lawyer, acting upon the advice of your mother, you made a full and frank confession, not hiding behind your right to silence.

11.  You also agreed to testify against the person referred to as the unknown male and did so on 19 April of this year. Despite the fact that the person was not convicted the prosecution very fairly indicated that you, D1, had given evidence in accordance with your witness statement and therefore you had done your very best to assist the prosecution.

12.  Referring to the previous conviction for dangerous drugs, Mr Leung told me that this occurred after the family hired a domestic helper to assist when your mother had an operation.  You, yourself, had been looking after domestic duties and were relieved of those duties and, therefore, had more leisure time on your hands and you became influenced by some undesirable elements.  You ceased your studies, left school and took up employment for a short time.  On approximately 15 April, at the instigation of the unknown male, you and D2 committed the present offence in the knowledge that the flat was empty.  The value of the goods was low and there was no ransacking, no tools were used and, as no one was at home there was no question of violence. 

13.  For the dangerous drugs offence, you were placed on probation.  This was for possession of cocaine.  Resulting from this, your parents took extreme measures.  Your mother gave up her job of eight years to be with you and you moved from the Hung Hom area, initially to Wong Tai Sin, and eventually to Tung Chung.  You are subject to a curfew which has been observed.  The very day the probation order was imposed you were arrested for the present offence.  The probation order has operated successfully and you fully cooperated. 

14.  As a result of being kept in custody, you became determined to change your ways and resume your education.  You enrolled at your present school.  That you have completely changed your ways.  You play for the school football team; you are a prefect; you have joined an English prose reading course; you have obtained work experience and you enjoyed very positive comments from your teachers.  You assist in charitable work, such as, acting as a voluntary guide at Disneyland for elderly people.  Thus, Mr Leung submitted you had totally reformed yourself.  You also assist with the running of the family doing most of the housework and walking the six dogs. 

15.  The domestic helper is no longer with the family.  Your mother is in poor health.  You also assist your father by performing administrative work in his business.  You have remained drug free and received a very satisfactory progress report when you returned to court last November.  Mr Leung stressed the support and love of your family.  In addition to your mother giving up her career to be with you, your father concentrates on morning work, getting up at 4 am daily so that he can be at home with you in the evenings.  I was taken to various letters and documents in the bundle to support the changes which have taken place.  Your own letter was read to me.  Mr Leung also told me that you, yourself had saved $1,500 a month from your pocket money with an intention of repaying the victims.

16.  Finally, Mr Leung referred me to various sentencing authorities, especially to the six factors set down in the case of R v Brown [1981] 3CR Appeal Reports at (S294 and 295).  He submitted this was a wholly exceptional case, despite the seriousness of the offence, and that you fulfilled all those six criteria for a Community Service Order.  Mr Leung concluded by submitting that I should treat this case as wholly exceptional and make a Community Service Order as recommended. 

17.  Miss Lam then entered mitigation in respect of you, D2.  She told me that generally, but with a few minor corrections, you accepted the contents of the probation officer’s report.  You are of clear record, 19 - in fact, I think you are 18 - and educated to Form 4.  Your father is aged 62, earning $7,000 to $8,000 a month.  Whilst your mother is 47, earning $5,000 a month.  Quite properly she stressed your plea of guilty and that you gave evidence in the trial of the so-called unknown male.  That evidence had been fair and consistent even though the male was acquitted. 

18.  She stressed that the premises had not been ransacked and you were of clear record.  She referred to your employment record from October 2010.  Despite a contrary recommendation, she asked me to make a Community Service Order by way of a last chance. 

19.  I will deal with your sentence first, D1.  I am satisfied that this is a serious burglary of domestic premises, for which the normal sentence is a starting point of 3 years.  That, of course, would be reduced to 2 years for your plea of guilty.  Mr Leung strove mightily to persuade me that this is a wholly exceptional situation and that Community Service is appropriate.  I pay tribute to his diligence and the amount of work that went into compiling the file of mitigation.  This is in addition to his very persuasive oratory to court, it is most impressive.  D1, you could not have been better represented. 

20.  I accept the following points in mitigation. 

1. D1, you were a young man of 18 at the time of the commission of this offence, therefore rehabilitation is a strong consideration.

2. You were of clear record at the time of the offence.

3. The offence occurred when you had come under the influence of a bad peer group.

4. The probation officer’s background report is generally positive although I note a continued tendency to truancy. I understand that this is improving.

5. The recommendation for community service is logical and measured based on solid principles.

6. You have demonstrated true remorse by your early indication of a plea of guilty and your immediate and unequivocal admission to the police. Also I note your willingness to give information about your co-burglars.

7. Your assistance in the prosecution of a so-called unknown male by the giving of a statement and live evidence. I note the very fair concession made by the prosecution that the evidence given in court was consistent even though a conviction was not achieved.

8. I note as an indication of your remorse your willingness to compensate the victim and the fact that you have taken positive steps to save your pocket money for this purpose.

9. The exceptional and praiseworthy efforts of your mother and father to render support and get you back on the straight and narrow. The sacrifices they have made on your behalf are enormous. Your mother, an English graduate, has sacrificed her career to assist you. Your father too has changed his work pattern in order to be with you more by rising early in the morning to work. The loss of your mother’s salary must be a great problem to the family but, beyond this, is the relocation of the whole family to Tung Chung away from the malign influence of your dubious friends.

10. Your own efforts to reform by returning to education.

21.  Whilst I have noted there are still some issues remaining to be solved, you have certainly made considerable progress on all fronts to improve yourself.   I note especially your involvement in school sports, the academic field and the positive reports that are placed before me. I note also the charitable work that you have undertaken and your declared intent to improve yourself.  I am persuaded that you are sincere and you are to be encouraged to keep on improving.  I also note the positive progress you have made under you existing probation order.  This is acknowledged by the existing probation officer’s report and also by the progress report that was presented to my colleague in November.

22.  Whilst being aware that the offence itself is a very serious offence, in my opinion, this is a wholly exceptional case.  I find that given the efforts that you have made and your parents on your behalf, that you are deserving of a last chance.  Therefore I propose to make a Community Service Order for a period of 200 hours.  You will pay compensation to the victim of $5,260.  The Community Service Order requires you to perform 200 hours unpaid work by and for the benefit of the community under the supervision of the probation service within the next 12 months.  You must perform the work satisfactorily.  The only absences that will be countenanced are those supported by medical evidence and you must commit no further offences.  Should you breach the order you will be brought back to this court and sentenced afresh for what you have done.  Are you willing to accept community service?

1ST DEFENDANT: Yes, sir.

23.  Then I confirm the order.  Mr Leung, the payment within 14 days?

MR LEUNG: That should be fine, thank you.

24.  I turn now to you, D2.  In your case community service was not recommended.  Whilst there is some mitigation, there is not the wealth of mitigation which applies to D1.  As you know I adjourned the case for custodial reports, suitable for a young person whilst acknowledging this to be a domestic burglary.  For reasons given in the report you are found to be suitable for rehabilitation centre, detention centre and training centre but the recommendation is for detention centre. 

25.  Miss Lam, on your behalf has entered further mitigation today referring me to sections of the report.  Sections that emphasise your remorse, your plans for the future and the family support that you enjoy.  Again, I make the point that this is a serious offence for which the starting point is one of 3 years’ imprisonment reduced to 2 years’ imprisonment for you plea of guilty.  As I have said, whilst you lack the extreme mitigation put forward on behalf of D1, there are many points in mitigation in your case. 

1. Your youth. You are only 18 years of age.

2. Your clear record.

3. The cooperation that you showed on arrest with the police and your assistance that you rendered to the police.

4. Your plea of guilty.

5. The efforts to assist the prosecution by giving evidence in the trial of the so-called unknown male. Even though a conviction did not result it is acknowledged by the prosecution that you did give evidence in accordance with your non-prejudicial statement. That counts greatly in your favour.

6. The facts of the burglary, there was no ransacking of the premises nor was anyone put in any fear.

26.  Given all these factors, I do reject the usual sentence.  You are not deemed to be suitable for community service but the probation officer feels that you need a structured environment.  I accept that.  Also the probation officer’s report, whilst not a bad report, was not particularly good.  As I have said, I am of the opinion that prison is wholly inappropriate, therefore I intend to impose an order for detention which is more appropriate and realistic and which will enable you to have the help that you will need to address your problems.  Therefore, in your case, you will go to a detention centre.  As you are losing your liberty it is not appropriate to award compensation against you.