HKSAR v. CHOW CHEUK WANG KENWARD

DCCC 94/2022

[2022] HKDC 754

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 94 OF 2022

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REASONS FOR SENTENCE

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Introduction

1.  The defendant (“D”)  is convicted on his own plea of 3 charges of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210 and 1 charge of Possession of Offensive Weapon in a Public Place, contrary to section 33(1)  and (2)  of the Public Order Ordinance, Cap 245. Particulars of Offence for Charges 1 to 3 stated that on 24 October 2021 D entered as a trespasser 3 separate shops insider the first floor of Kingswood Richly Plaza, Kingswood Villa in Tin Shui Wai and stole therein.  Charge 1 involved HK$20, Charge 2 involved HK$320 and Charge 3 involved Euro 100 and RMB 1.  The Particulars of Offence for Charge 4 stated that on the same date and at the same location, D without lawful authority or reasonable excuse, had with him an offensive weapon, namely 1 knife.

Facts of Case

2.  All 4 charges arose from the same incident. The Summary of Facts admitted by D revealed that at the time material to the case the shopping mall concerned, i.e., the Kingswood Richly Plaza in Tin Shui Wai (“the Mall”), was open to the public 24 hours a day.  Security measures included security guards and CCTV.  The shops inside the Mall relevant to this case only used curtains to cover the entrances without other security measures.

3.  At around 0211 hours on 24 October 2021 a security guard of the Mall spotted D inside the Mall acting suspiciously.  A report was made to the police.  At around 0229 hours the police party responding to the call stopped D on the first floor inside the Mall.  Upon search, D was found to have a fruit knife (8-inches long)  at the area between his right shoe and sock; cash HK$320 in his right front trousers’ pocket; cash EURO 100, RMB 1 and HK$20 inside his right rear trousers’ pocket and that he was wearing a glove at his left hand with the right-hand glove found in the pocket of his jacket.

4.  D was arrested for “possession of offensive weapon”.  Under caution, D said “Ah sir, I have the knife with me for self-protection and intimating others, I put it inside my shoe so that it is convenient for me to use it anytime.”

5.  When being enquired about the money he had on him, he admitted to have stolen them inside 3 shops in the Mall and voluntarily took the police to the 3 shops as particularized in Charges 1 to 3, admitting under caution at each shop of stealing the relevant money therein.

6.  Later in a Video-Recorded Interview, D admitted under caution that he went inside the Mall alone to steal therein.  He further admitted that he only wore a glove on his left hand in order to avoid leaving any fingerprints.  As to the fruit knife, he admitted that he was afraid that he would be bullied so he kept it for self-protection but had never used it before.

Background of D

7.  According to the Background Report and Training Centre Report, D is 18 years old, born on 5 July 2003 in Hong Kong.  His parents divorced in 2017.  He is single and resided with his mother and a younger brother in a public housing unit in Tin Shui Wai.  He studied up to Form 1.  At one stage he worked in the construction company owned by his father, but only for a short time.  He also claimed to have worked as a chef.  He was diagnosed with ADHD, oppositional defiant disorder and dyslexia when he was about 7 years old.  He was put on medication until July 2019 when his Attending Doctor recommended suspension of medication as his situation had improved.

8.  During D’s childhood his parents did not provide sufficient care and guidance to him.  He had all along been an academic underachiever since his lower primaries.  His wayward behaviour also began to surface when he was still in primary education.  He first came into trouble with the law in 2015.  For an allegation of Common Assault he was cautioned under the Police Superintendent’s Discretion Scheme.  He was only 11 at the time.  Since then he became involved in triad and dangerous drug activities, and his behaviour continued to deteriorate.  He is only 18 now but at such a young age he already has an appalling criminal record, with a total of 10 previous convictions, including 3 for Burglary and 1 for Possession of offensive weapon.  He had been sent to Reformatory School but he did not seem to have benefited by the training there.  His last conviction came on 14 June 2019 when he was sentenced to Training Centre for a total of 7 convictions.  I understand that he was last discharged from the Training Centre on 23 June 2021, about 4 months prior to the commission of the present offences.

Mitigation

9.  In mitigation, Mr Kwan who represented D, submitted D is entitled to the usual 1/3 discount for his early guilty plea. For Charges 1 to 3, Mr Kwan urged the court to pass concurrent sentences.  He submitted that in the light of the Reports, imprisonment seems to be the only option open.  He urged the court to treat the case as opportunistic Burglary and consider totality principle in passing sentence on D.

Assessment of Sentence

10.  Given the young age of D, and in consideration of the provision in section 109A of Cap 221, I called for Training Centre and Background Reports to provide more information to assist me in assessing the appropriate sentences to be imposed on D.

11.  D has been sent to Training Centre once but does not seem to have benefited from the training provided therein.  During the current remand period, he has broken the institutional rules repeatedly for a total of 10 times between November 2021 and June 2022.

12.  So far as Charge 4 is concerned, section 33(2)(c), which is applicable to D, does not include Training Centre Order as an option.  Detention Centre Order is not an appropriate option either given the seriousness of the offences and Rehabilitation Centre Order is not applicable under section 4(2)  of Cap 567.  The only sentencing option open for this offence is imprisonment of not more than 3 years.  This offence is an excepted offence, so that no suspension of sentence could be considered.

13.  It is always difficult for the court to send a young man like D to prison, but it seems to me that this is the only option open for the present case.

14.  It is well established that the starting point for Burglary of non-domestic premises is 2 years and 6 months.  In HKSAR v Cheng Wai Kai (unrep CACC 338/2007), the CA listed a number of factors which can be considered to be aggravating circumstances, including the offender has previous conviction, particularly of a similar nature and the commission of multiple offences.  Although youth can be regarded as a mitigating factor (HKSAR v Tsang Chun Yin [2018] 1 HKLRD 1128), D, despite the fact that he has yet to reach the age of 19, has already had 3 convictions for Burglary.  The present case involved the commission of 3 similar offences on a single occasion.

15.  D went to the Mall in late night with an intention to steal therein, and equipped himself with the gloves, which he wore on one hand to avoid leaving fingerprints.  I do not accept that it was an opportunistic Burglary as suggested by Mr Kwan.

16.  Having taken all relevant matters into consideration, I adopt 2 ½ years as the starting point for Charges 1 to 3, and 12 months for Charge 4.  D is entitled to 1/3 discount for his timely guilty plea.  There is no other mitigating factor warranting further discount.  For Charges 1 to 3, D is sentenced to 20 months each.  The 3 offences were committed on the same occasion.  I order sentences for all 3 charges to run concurrently.  For Charge 4, D is sentenced to 8 months’ imprisonment.  This offence is separate and distinct from the other charges.  On the totality principle, I order 4 months to run consecutive to the sentence in Charge 1.

17.  For the 4 offences D is sentenced to a total of 24 months’ imprisonment.