HKSAR v. NG TIN HO AND ANOTHER

DCCC824/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 824 OF 2011

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Reasons for Sentence

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1.  Both defendants pleaded guilty to a joint charge of burglary.

2.  The facts were that both defendants were acquaintances of the victim, aged 15, who lost his keys about 2 weeks before 30 May 2011.  The victim’s premises were then unlocked and handbags, watch, computer and video camera were found missing.  After about 2 weeks, the 1^st defendant related to the victim that both defendants had entered the premises and stole properties therein.        

3.  Under caution, the 1^st defendant admitted having burgled the premises and felt remorseful.  Three handbags and a video camera were recovered from his premises. The 1^st defendant further stated that the 2^nd defendant would beat him if the 1^st defendant did not join.      

4.  For the 2^nd defendant, under caution he admitted having burgled the premises with the 1^st defendant. A stolen watch and notebook computer were recovered from the 2^nd defendant.  The 2^nd defendant further stated that he stole the victim’s keys as a trick and only intended to mess up his home, but later on was greedy and stole properties therein.  He also sold part of the properties for $600.       

5.  The 1^st defendant is aged 18 and he has a clear record.  Ms Chow submitted that he is mild grade mentally disabled and is easily influenced by others.  A report dated June 2006 by educational psychologist and a medical report dated October 2011 by a psychiatrist of Queen Mary Hospital are attached to show the 1^st defendant’s mental condition. 

6.  Further, Mr Chow, a social worker of Outreaching team, having known the 1^st defendant since 2009, had enclosed a letter stating that the 1^st defendant was deeply regretful.  The 1^st defendant knew his offence was serious and Mr Chow observed that the 1^st defendant might be to some extent intimidated by others.  The 1^st defendant’s mother and church leader also wrote to plead for leniency.

7.  While Ms Chow emphasised that the 1^st defendant was heavily influenced by others, it fell short of duress. 

8.  With all the reports and submission in mind, I can accept that the 1^st defendant is a person of his mental condition easily affected by others.  However, I do not consider it acceptable to the extent to say that the 1^st defendant was threatened to commit the crime.

9.  In any event, the 1^st defendant is of young age, clear record and pleaded guilty.  He had been remanded for obtaining reports.  There were exceptional circumstances where a lenient sentence could be imposed, such as the fact that it was the 1^st defendant who disclosed his offence directly to the victim and his association with the 2^nd defendant, otherwise the crime would not have been known. Coupled with the 1^st defendant’s mental condition, I consider it appropriate to adopt the recommendation of the probation officer. 

10.  For the 2^nd defendant, aged 27 and he has 6 counts of previous criminal convictions, 3 of obtaining property by deception and 3 of theft, where he was last sentenced in September 2011 for 6 weeks’ imprisonment.

11.  Mr Kam submits that he worked as a security guard until February this year, when the club was shut down and he lost his job.  He did not have any premeditated plan to burgle, but rather originally intended to mess up the premises, only to be greedy later on and stole properties therein. The 2^nd defendant now pleaded guilty and even agreed to be a prosecution witness at the outset. 

12.  Burglary is a serious offence.  Domestic burglary would normally attract 3 years’ imprisonment. However, considering his willingness to be a prosecution witness, the fact that if all the offences including the recent matters could be dealt with together then an overall lesser sentence would be achieved. Considering all the mitigating factors submitted, I would adopt 2½ years’ imprisonment as a starting point.  That will be reduced to 20 months upon his guilty plea.

13.  So for the 1^st defendant, the sentence he will receive is a probation order for 12 months; for the 2^nd defendant, 20 months’ imprisonment.