HKSAR v. CHEUNG CHEUK HIN AND ANOTHER

DCCC 163/2018

[2018] HKDC 868

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 163 OF 2018

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REASONS FOR SENTENCE

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1.  The two defendants pleaded guilty to one count of “burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

Facts

2.  Metroplaza is a shopping mall with main entrance secured by glass doors without roller gate. At midnight every day, security guards would set up metal fencing inside the glass doors to stop unauthorized entry.

3.  At the material times, Simplylife Bakery Café was a restaurant situated at 5^th Floor of Metroplaza. The Café was enclosed on 3 sides with no door at its entrance.  A “closed” sign would be put outside the entrance of the Café after it was closed for business.

4.  On 2 September 2017 at 11:30 pm, Mr Ho, manager of the Café, closed the shop for business. Before leaving, he checked everything was in order.

5.  At 12:50 am on 3 September 2017, Mr Chong, while he was on duty monitoring the security of Metroplaza through watching CCTV installed in Metroplaza, noticed the two defendants enter Metroplaza through the glass doors of the main entrance. Mr Chong found it strange and reported to the police.

6.  Mr Chong kept observing the two defendants via CCTV.  He saw them walk up to the 5^th Floor.  Then, the first defendant entered the Café while the second defendant acted as a lookout.  The first defendant stayed in the Café for about 1 minute and left with a can of soft drink in his hand.  While the two defendants were on the way leaving Metroplaza, police arrived and intercepted them. 

7.  Under caution, the first defendant admitted entering the Café intending to steal while the second defendant acted as a lookout.  He found nothing of value and thus he stole a can of soft drink.

8.  Under caution, the second defendant admitted acting as a lookout while the first defendant entered the Café. He saw the first defendant steal a can of soft drink.

9.  Mr Ho of the Café confirmed that the soft drink was stolen from the Café.

Mitigation

10.  The first defendant is aged 17.  He was educated up to F4 and then started to work as a bartender.  He is single and previously lived with his parents.  He has one conviction for attempt robbery in March 2018 and is currently serving the sentence in the Detention Centre.  It was submitted that the first defendant came from a stable family with both parents working. The first defendant undertook to reform himself.  The court was urged to sentence the first defendant to the Detention Centre.

11.  The second defendant is aged 16.  He is single and lives with his parents.  The second defendant has a clear record.

12.  It was submitted that the second defendant did not play an active role in the offence.  No weapon nor tool was involved.  No injury was caused.  None of the defendants put on sun glasses, mask or hat to conceal their identity.  The value of stolen property was low.  The offence did not involve detailed planning.  It was further submitted that given the second defendant’s youth and clear record, imprisonment was not the only option.  The court was urged to call for reports before sentencing. Mitigating letters were submitted which show the second defendant was previously a rule-abiding and helpful student but he was easily influenced by others.  The defence also relied on the reason for sentence in a similar case in DCCC 115/2010 and urged the court to consider imposing a probation order.  

Sentence

13.  There is a well settled sentencing guideline for burglary of non-domestic premises.  According to the guideline, the starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2.5 years’ imprisonment.

14.  However, in the light of the fact that both defendants are under 21 years old and by virtue of section 109A(1) of the Criminal Procedure Ordinance, Cap. 221, I adjourned the case so that pre-sentencing reports could be called for.  These reports are now available.

15.  As far as the first defendant is concerned, he is currently serving his sentence in Detention Centre for the case of DCCC 945/2017.  In the Detention Centre Suitability Report, it was stated that “the defendant was able to tune in the disciplinary training and to make steady progress.  He was able to follow the rules and regulations in the Detention Centre. He showed sense of remorse for his misdeeds and determination to turn a new leaf.”  After assessment of his behavior and attitude whilst undergoing training in Detention Centre, the first defendant was considered suitable for detention in Detention Centre.  In the circumstances, I am prepared to give the first defendant another chance by sentencing him to Detention Centre for the present offence.  I hope he will keep his promise and turn over a new leaf.  By virtue of section 7(1)(aa) of the Detention Centres Ordinance, Cap. 239, given the first defendant is sentenced to Detention Centre for the present offence, the detention order in respect of DCCC 945/2017 shall lapse.

16.  Regarding the second defendant, the Report on Suitability for Detention Centre / Rehabilitation Centre / Training Centre stated the second defendant “showed some sense of remorse and was observed to have reflection into his wrongdoings.  … In order to strengthen defendant’s law-abiding concept, a period of disciplinary training coupled with statutory supervision would be beneficial to his rehabilitation.”  He was assessed to be more suitable for detention in a Detention Centre.

17.  Probation Officer’s report on the second defendant showed that the second defendant seemed to have gained some insight into his problem and expressed his readiness for admission into a boarding school in order to cut off his dubious linkages and concentrate on his studies without further disturbances. The probation officer was of the view that a period of residential training at a boarding school would be beneficial to the second defendant and the second defendant deserved a chance for social rehabilitation in the open setting given his remorse and clear record.

18.  The Young Offender Assessment Panel considered the second defendant’s case and recommended placing him on probation supervision for 24 months.

19.  In view of the second defendant’s young age, clear record and his plea of guilty to the charge and the Young Offender Assessment Panel’s recommendation, I am prepared to follow the recommendation of the Panel and impose a 24-month probation order on the second defendant with all the special conditions as specified in the report.  I hope the second defendant will treasure this opportunity to reform himself and become a useful member of the community.  The second defendant has to attend court again on 19 July 2019 at 10 am, court 21, for progress report.