HKSAR v. KWAN KAM SING AND ANOTHER

DCCC508/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 508 OF 2011

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Reasons for Sentence

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1.  Upon plea bargain, both D1 and D2 pleaded guilty to one count of criminal damage while D2 to an additional count of criminal damage, that is Charge 2. Both of the defendants were convicted.

2.  In view of their age, I called for a probation report on D1 and DC, TC and RC reports on D2.  I remanded D2 to jail custody while extended D1’s bail.

Charge 1

3.  PW1 and PW2 were janitors of Ho Lap Primary School at Tsz Lok Estate, Tsz Wan Shan.  On the morning of 12 February 2010, they found many ping-pong balls scattering all over the playground.  They also found a broken chess cue, burnt lanterns and damaged ping-pong rackets.  Upon search, an empty snack box (Exhibit E1), three cigarette butts (Exhibit E2 to 4) and a plastic box (Exhibit E5) were found at the scene.

Charge 2

4.  On the afternoon of 16 February 2010, PW2 found that a fire exit door of the school had been prized open.  The glass of the door of the music room was broken.  It was also discovered that the door of a gymnasium was opened with some Chinese characters scrawled thereon.  The gymnasium equipment was also scattered on the ground.  The ground of the female toilet was scattered with sanitary napkins.

5.  Upon investigation, it was revealed that the Octopus card (Exhibit E6) belonged to D1 Kwan was used to buy a snack (Exhibit E1) from a vending machine in the school.  DNA samples were found on the cigarette butts (Exhibit E3 and E4) which matched with that of D2.  D2’s fingerprint was lifted from the plastic box (E5).

6.  D1 was arrested on 15 March 2010 and his Octopus card (E6) was located.  Under caution, D1 said that he climbed over a fence and entered the school with D2 and another girl on 11 February 2010, two days before the Lunar New Year.  Inside the school campus, D1 burnt some holes on four lanterns.  Before he left the campus, he did use his Octopus card to buy a snack from the vending machine.

7.  Under caution, D2 admitted that he climbed over the fence and entered into the school with D1 and another girl on 11 February and 15 February.  They burnt holes on four lanterns.  On 15 February 2010, when he entered into the school again, he smashed the glass of the door of the music room.  D2 was a former student of the school.

Mitigation

8.  Both accused committed the offence just for fun.  The dates of the offences were close to the Lunar New Year.  They just wanted to spend time in the school as D2 was the former student of Ho Lap Primary School.  It was submitted that on these occasions, there were other people or trespassers around.  The accused did not litter the female toilet with sanitary napkins. 

9.  Some of the damages in the school were not caused by these two defendants who are young and need to be given chances to reform.  D2 committed the drugs offence only after this incident.  Counsel asked for a lenient sentence on these young offenders.

10.  Defence counsel tendered two mitigation letters for D2 on the last occasion.  Today, 6 September, defence counsel tendered one mitigation letter from D1’s teacher and an updated mitigation letter dated 2nd September from D2’s employer who is willing to re-employ D2 upon his release.

Sentence

11.  D1 is aged 17 and had a clear record.  He studied up to Form 5.  D2 is aged 16 and had one conviction of simple possession of dangerous drugs, namely Ketamine, for which he was put on probation for 15 months in December 2010.  As it is noted, that the present offence was committed prior to his subsequent drug offence in October 2010. 

12.  Accordingly, I called for an updated Probation report on D2, in additional to other reports.  Although the charge against both accused, by now is one of criminal damage which attracts less culpability than offences of burglary, a sentencing court is required to look into the rehabilitative perspective when young offender is involved.  This is not a easy task as a balance needs to be struck properly.  The Probation report on D1 is very positive.  The Probation officer commented to that D1 has not demonstrated any wayward propensity before and the present offence appears to be an isolated incident.  External guidance is required and a probation order for 12 months is recommended.

13.  As regards D2 in the updated report, the Probation officer did not recommend further probation on this incident as D2 has been subject to a probation order since 24 December 2010.  The other reports suggested that D2 is suitable for detention in a Detention Centre, in order to strengthen D2’s law abiding concept and for the interest of his rehabilitation. Defence counsel argued, with some force, that this incident happened prior to the drugs offence.  It seemed that nothing was spelled out as to why continuing probation order cannot be imposed, except that on 9 occasions, D2 was found to violate the curfew even though it was claimed that the Probation officer was informed subsequently. 

14.  D2 had a clear record when committing the present offence and this court was urged not to consider the drug conviction. D2, his family and the society, it is submitted, asked for a further chance to be given.  In addition, D2 was the breadwinner of the family and he has learnt a great lesson.

15.  Taking all factors into account, I will give a chance to D1 to reform himself by imposing a probation order for 12 months.  As regards D2, again I expect D2 can turn a new leaf and reform himself.  In my view, a sentencing court is bound to consider and rely on the expertise of the officers who prepared the various reports.  D2 is to be detained not just for the sake of detention but for reform and rehabilitation.  It was reported that D2 incurred serious behavioural problems after getting acquainted with triad related peers and even started to take ketamine periodically in January 2010.  I am convinced that it is in the interest of society and D2 himself that he has to undergo a period of disciplinary training and statutory supervision. Accordingly, I would follow the recommendation and send D2 to the Detention Centre.