HKSAR v. LIN YUN TAT

DCCC513/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 513 OF 2011

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Reasons for Sentence

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1.  The defendant has been convicted on his own plea of one offence of burglary. The burglary occurred on 13 March 2010 at a Park’N Superstore in Tin Shui Wai. I have already been through the facts of that case related to other defendants. I do not propose to rehearse them again.

2.  The defendant was involved with a number of other young men in the taking of five bottles of wine from the supermarket. The offence occurred in the early hours of the morning.  There was some preparation in the sense that items such as masks were obtained as well as tools such as a hammer and pliers.  In any event, the items stolen were valued at $620 which is simply five bottles of wine and I characterised this as being a petty theft kind of burglary when I sentenced the other defendants.  The basis on which the defendant admitted the facts was on the basis that he is one who entered the store. 

3.  The defendant is a very young man.  He is only 17 years old.  In the normal case of a non-domestic burglary and an adult person of clear record can expect a substantial period of imprisonment, even on a plea of guilty.  This defendant has pleaded guilty, agreed the facts, and I have convicted him of the offence.  In sentencing him, because of his age and the fact that he was currently subject of probation order, I obtained reports from the Probation Services and the Correctional Services Department in order to assist me in sentencing.  The contents of those reports provide certain recommendations for the sentencing of the offender.  I will deal firstly with the Probation Officer’s Report which deals with the defendant’s background and also his previous criminal history. 

4.  The defendant’s previous criminal history starts in the year 2009 when he was subject of a Superintendent’s Discretion for theft.  Since then in February 2010 he was sentenced for assault occasioning actual bodily harm and common assault to 80 hours of community service. Finally in May and July 2010, for breach of the community service order and conspiracy to pervert the course of public justice he was placed on probation for 18 months. 

5.  The Probation Officer’s Report describes the defendant as having been brought up in a family lacking effective parental discipline and supervision, the defendant becoming rebellious and playful in his childhood.  He is described as becoming wayward and hedonistic in the year F4 when he was at boarding school.  He was involved in truancy and started taking soft drugs.  Around that time he had absconded from home and was involved in his first breach of the law which resulted in him being put on Police Superintendent’s Discretion and later subject to Community Service Order, and finally subject to the Probation Order.  On the Probation Order he has been admitted to the Christian New Being Fellowship Training Centre, that admission been in May 2010.  That was primarily for drug withdrawal treatment. 

6.  The probation officer describes his performance as being fluctuating in the centre, showing progress in his studies.  A more detailed account is given in the body of the report. 

7.  The defendant had been a person who had taken ‘ice’, cocaine and ecstasy and for that reason he was admitted to the Christian New Being Fellowship at Pak Tam Training Centre for the residential drug withdrawal treatment programme.  He is described, as I have said, having a fair performance due to adjustment problems.  There had been rebellious gestures and he had broken the norms of the training centre.  He was given advice there and I am given to understand he needed to exercise further control. 

8.  Most recently the defendant had appeared to still be in need of more efforts in achieving a better performance.  The defendant had agreed to continue to receive training there.  The defendant understood he was in need of enhancing his willpower in reforming his character. 

9.  The conclusion of the Probation Officer’s Report is as follows.  It says in view of his fluctuating performance at the training centre and past criminal and the gravity of the offence, disciplinary training is deemed conductive to reforming his character.  However, if leniency is to be extended a further 18 months’ probation could be considered on the basis the defendant stays at the Christian New Being Fellowship Training Centre.  Because of the defendant’s record of breach in community service and other considerations, community service is not recommended for him.

10.  The Commissioner of Correctional Services also assessed the defendant and provided a detailed report which in many ways echoes the conclusions of the Probation Officer’s Report.  The Correctional Services Department noted that the defendant had showed positive attitude towards his studies inside the centre.  The defendant had been interviewed by them and was polite and co-operative in his attitude.  He said he had decided to stay away from his dubious peers after being put on the Probation Order in May 2010.  He had learned a lot during the residential period in the Christian New Being Fellowship and hoped he could continue his treatment there.  He also expressed verbal remorse for his other misdeeds. 

11.  The conclusion to the report by the Correctional Services Department is firstly, the defendant is no longer drug dependent, so one can say that the defendant’s period at the Christian New Being Fellowship Training Centre has had that positive effect.  Clearly he is unsuited for admission to a drug addiction treatment centre.  He is mentally fit for all the programmes that the Correctional Services Department offer.  From their general assessment, from his behaviour and attitude it is thought that he is more suitable for detention in a detention centre.  In that, the Correctional Services Department echoes the conclusion reached by the Probation Officer who considers that disciplinary training is deemed conducive to reforming the defendant’s character. 

12.  The defendant undoubtedly has made progress at the Christian New Being Fellowship Training Centre but the Probation Officer does not give what I call wholehearted support to him continuing at that centre at this time.  His conclusion appears to be that disciplinary training would be a better option for him in the circumstances. 

13.  I note the contents of these reports and I note also the letter that the defendant has written to the court and it does appear from him and also what he said to the Correctional Services Department that he has made progress at the centre.  He has certainly rid himself of any dependency he may have had on drugs and has made a spiritual commitment.  He believes he would like to stay and work in the centre and eventually return to school.  The question simply is do I interrupt the progress he is beginning to make at that centre or do I permit him to continue there.  In assessing the defendant I have to a certain extent be involved in a balancing act. 

14.  The defendant has been involved on this occasion in March 2010 in a serious criminal offence.  He has for his age a poor criminal record.  He was not placed on probation until some months after this criminal episode.  The observations of those dealing with him in the centre have described his performance as being fair but they say that the defendant could continue retraining there even if he was discharged from disciplinary training. 

15.  It does appear to me, based largely on the report from Probation Services and the Correctional Services Department the defendant needs further training, especially in the areas of enhancing his willpower and reforming his character, and it is clear that the authorities in the form of the Probation Services and the Correctional Services Department believe that that can be better dealt with in a disciplinary setting. 

16.  I agree with them and consider that the appropriate sentence for this defendant in respect of this offence be one of detention centre training, and that is the sentence that I will impose for this offence.