HKSAR v. LUO JIE

DCCC 34/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 34 OF 2016

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REASONS FOR SENTENCE

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INTRODUCTION

1.  On 16 May 2016, the defendant was convicted, on his own plea, of three charges of burglary, preferred against him by the prosecution under section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (the second, fourth and fifth charges), whereupon the remaining two charges of burglary were ordered by consent to be left on court file marked not to be proceeded with without the leave of the court or that of the Court of Appeal (the first and the third charges). 

FACTS

2.  On the early morning of 8 October 2015, Yan Shiu-fai, lawful tenant of Flat 10, 1^st Floor, Kin Tai House, Nos.89-113 Wan Hon Street, Kwun Tong, Kowloon, assured himself that the doors and windows of the flat were secured before he went to bed.  The defendant climbed up – according to his post-arrest, cautioned statement – the water pipes on the outer wall of Kin Tai House, reached into Yan’s premises through a window to open the back door, and entered the premises to steal cash of about RMB ¥2,000 and HK$2,000, an Octopus Card, and a smartphone; in addition, he found on the common platform outside the flat a key capable of opening the back door of Flat 12 of 1^st floor.   The next morning, Yan woke up only to find his place ransacked and that the following items had gone missing: a smartphone (worth about $200), cash in the sum of RMB ¥2,100, and a phone case containing one Worker Registration card, one Octopus Card with a stored value of HK$150 and cash in the sum of HK$1,200.  A report was made to the police; upon investigation, they found on the wooden door a fingerprint impression belonging to the defendant.  (Charge 2).

3.  On the evening of 22 October 2015, a couple Mr and Mrs Ng, occupiers of Flat 12, 6^th Floor, Kin Tai House, went to bed.   In the early hours of 23 October 2015, a police officer saw the defendant climb up the water pipes on the external wall and disappear around a corner to the other side of the building.  What transpired – according to the cautioned statement the defendant gave to the police subsequent to this arrest – was that he entered Mr and Mrs Ng’s flat and took away some HK$700.  That morning, the police arrived at the flat for enquiry.  Mr Ng discovered that HK$480 had been stolen from his wallet, and Mrs Ng found HK$300 had gone missing from hers.  (Charge 4)

4.  Mr and Mrs Fan and their son lived in Flat 12, 7^th Floor, Kin Tai House.  They went to bed in the early morning of 23 October 2015.  According to his cautioned statement, the defendant climbed into their flat and stole cash of around HK$1,500, a tablet computer, a jade pendant, and two smartphones.  (Charge 5) Next, he climbed along the water pipes to reach the common platform, entered Flat 12 on the 1^st floor using the key he had found earlier, and took a shower in that flat.  When he emerged from Flat 12 by the front door, the police officer who had seen him scaling the building that early morning intercepted and arrested him in the corridor.  In the defendant’s possession were found four smartphones, one tablet computer, a portable battery with a charging cord, a pair of earphones, a chain of three keys, one brown pendant with silver chain, one jade pendant, one watch, cash in the sum of HK$2,826, one Octopus Card, some cards and some coupons.  Under caution, he admitted having climbed up the water pipes to steal things.   

5.  Subsequently, Mr and Mrs Fan and their son confirmed that a tablet computer, two smartphones, a piece of jade, one Octopus Card with a stored value of HK$800 and cash of around HK$1,850 had gone missing from their premises.  The total value of the stolen items was around HK$22,240  (Charge 5)

MITIGATION

6.  The defendant was born on the mainland in January 1996 and is now 20 years old.  He came to live in Hong Kong in 2007 but has had no fixed abode here at the time of the offences. He has a total of five criminal conviction records, none of which are similar to his present convictions.  According to his Antecedents Statement, the defendant has received education up to Form Five level and has worked as a kitchen hand at Café de Coral and as a transport worker.  The defendant has no information as to the identity of his natural father; his mother committed suicide in 2010; his stepfather passed away in 2011; and his maternal grandmother, now 80, lives in the Jiangxi Province in Mainland China. 

7.  In his plea in mitigation, Mr Bernard Yuen for the defendant submits that the defendant understands the recommendation of the Rehabilitation Officer who compiled the Training Centre Suitability Report at the request of the court, but the defendant wishes nevertheless to be sent to prison instead.  The defendant is very much concerned about the period of his pre-sentence detention which stands, as of the date of his sentence, at some seven months.  He explains, according to Mr Yuen, he committed the present offences because his aged grandmother is in need of finance to fight her stomach cancer.  By that, it seems that the defendant wishes to be released from his incarceration as soon as possible, so that he could look after his grandmother in her moment of needs.  In addition, the defendant wishes the court to consider that he has breached a suspended sentence in committing the subject offences, and presumably, therefore, he is of the view that he deserves to be sent to prison rather than a training centre.

8.  According to the Training Centre Suitability Report, the defendant has completed Form Three. Since his stepfather’s demise in 2011, guardianship in respect of the defendant was granted to the Social Welfare Department.  He has lived in various homes and hostels and has been recalled to a detention centre twice, the first time in April 2014 and the second time in March 2015.  Prior to his remand in connection with the present case, he has lived with his peers in Tokwawan and Kwai Chung on an irregular basis.  At the time of the offences, he was working as a labourer in a fruit stall in Yaumatei, making some $16,000 a month.    

9.  Rehabilitation Officer Mr Poon Sze-chung notes that the defendant has been brought up in a broken family of which he was the only child; his school performance in Hong Kong was all along poor; he joined a triad society in August 2009 and has abused “ice” with his triad peers for slightly over a year; and subsequent to this release from a detention centre, his conduct during the supervision period was found less than satisfactory, leading to his recall to the centre on two occasions.  Having investigated in depth into the defendant’s upbringing, Mr Poon opines: “All in all, defendant almost had no family care and parental supervision during his formative years.  As revealed by his guardian Mr. LAU, defendant was loose in discipline and still under the guardianship of SWD until he was 21.”  Mr Poon is of the view that the defendant’s impulsiveness and his weak law-abiding concept are the chief source of his problems, and that a longer period of disciplinary training coupled with a period of statutory supervision upon discharge is beneficiary to his reformation.  A training centre order is recommended.

CONSIDERATION

10.  The tariff sentence for the offence of burglary committed in residential premises is a term of imprisonment for three years.[1] In the instant case, the defendant is not a person of previous good character. 

11.  That said, the court notes that section 4(1) of the Training Centres Ordinance, Cap 280, provides –

“ Where a person is convicted of an offence punishable with imprisonment, then if on the day of his conviction he is in the opinion of the court not less than 14 but under 21 years of age, and the court is satisfied that it is in the interest of the community and that having regard to his character and previous conduct, and to the circumstances of the offence, it is expedient for his reformation and for the prevention of crime that he should undergo a period of training in a training centre, the court may, in lieu of any other sentence, pass a sentence of detention in a training centre.” (emphasis supplied)

12.  In HKSAR v Wong Tsz Hin[2], the Court of Appeal said: “In view of the applicant’s young age and clear record and for the sake of the community, it is of importance that the applicant should be rehabilitated and a long term imprisonment may not be the best answer for his rehabilitation.” (emphasis supplied)  In the view of this court, when sentencing a young person, the issue of his rehabilitation must always be accorded due weight, and a prison term should be reserved as the very last option.  In this regard, section 109A(1) of the Criminal Procedure Ordinance, Cap 221, provides –

“ No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.”[3]

13.  It is generally acknowledged that detention at a training centre does not operate as a soft option to imprisonment.  A detainee can be deprived of his liberty there for a total period of three years, and there is a statutory period of post-release supervision of three years, by which to ensure a long-term change in the detainee’s law-abiding stance and his successful return to the community. 

14.  In the instant case, having regard to the circumstances of the commission of the offences and to the defendant’s character and physical and mental condition, a Training Centre Order is the more appropriate sentence to be imposed on the defendant.  In the words of Mr Poon, “a longer period of disciplinary training” is what the defendant requires for his rehabilitation.  It will, in the court’s view, reduce the chances of his re-offending, and it would enhance the prospect of his becoming as a law-abiding member of the society; such an order would best serve the interest of the community.   

CONCLUSION

15.  For each of the three offences in the second, fourth and fifth charges of which he stands convicted, the defendant is sentenced to detention at a training centre, to be served concurrently.  No order is made with respect to the suspended sentence in STCC 867/2015.