HKSAR v. NG MAN KIN AND ANOTHER

DCCC 360/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 360 OF 2014

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REASONS FOR SENTENCE

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1.  On their own pleas, D1 and D2 were convicted as follows.

1^st Charge

2.  D1 and D2 were convicted of a burglary offence in that they, on 30 November, 2013, together with other persons, having entered as trespassers St Francis of Assisi’s Caritas School, Shek Kip Mei, Kowloon, stole therein cash of $30.3 Hong Kong currency.

2^nd Charge

3.  D1 alone was convicted of a theft offence in that he, on 10 January 2014, 2014, at the podium, Shek Kip Mei Estate Market, Shek Kip Mei, Kowloon, stole one smartphone, property belonging to Kan Ming Yin.

3^rd Charge

4.  D1 alone was convicted of another burglary offence in that he, between 18 and 19 January, 2014, having entered as a trespasser part of a building known as Room 2407, Mei Yue House, Shek Kip Mei Estate, Shek Kip Mei, Kowloon, stole therein cash of $3,000 Hong Kong currency and 3 rings.

Summary of the facts admitted by D1 & D2

1^st Charge

5.  In the small hours of the subject day, eight to nine burglars climbed in the subject school premises from an adjacent hill while an accomplice remained outside the premises, looking around.  A neighbour saw what happened and alerted the police.

6.  The burglars emerged from the premises and fled as the police were arriving.  Some of them were intercepted by the police near the scene and they included D1 and D2.  On D1 was found a sum of $30.30.  Under caution, D1 admitted that he had stolen this cash from a purse inside a handbag inside a room of the school; while D2 admitted that he had entered the premises with D1 and others and had been present inside the room when D1 stole the $30.30.

7.  A cleaning worker employed by the school confirmed that a sum of about $30 had been stolen from a purse kept by her inside an unlocked room in the school.

2^nd Charge

8.  One evening V1 was at the subject podium area with his friend D1.

9.  After using a nearby toilet, he returned to the podium with D1 and realized his new phone went missing.

10.  Two days later, V1 suspected that a phone in the possession of D1 was his lost phone, reported this to his mother and they both went to confront D1 on it.

11.  D1 told them the phone had by then been sold.  V1 and his mother then alerted a nearby police officer.

12.  The officer then approached D1 for enquires and seized a phone in his possession. Closer examination of it revealed it to be V1’s lost phone.

13.  D1 was arrested.  Under caution, he initially claimed to have bought the phone in a second hand market.  In a later cautioned interview, he admitted he had stolen it at the subject podium on the subject date after he had noticed it had fallen from V1’s pocket.

3^rd Charge

14.  V2 was D1’s aunt.  She resided in the subject premises.  Some two years prior to the subject period, D1 had lived with her but no longer did so.  He did not have key to the premises nor permission to enter the premises.

15.  On the first day of the said period, V2 went to the Mainland after securing the door and gate of the premises.

16.  About a week later, she returned to Hong Kong and found cash $3,000 and 3 rings valued at $3,000 missing from her home.  Police report was made.

17.  Visitor records and CCTV footage revealed that D1 had been to the premises in the evening of the same day in the company of another male person, same day being the first day of the said period.

18.  D1 was arrested.  Under caution, he admitted he had hired a locksmith to gain entry to the premises; that he had stolen cash of $3,000 and three gold rings, the latter he had pawned for $800 at a gold shop.

19.  The locksmith confirmed that he had been asked by D1 to prize open the metal gate and drill open the lock cylinder of the wooden door after D1 told him he had dropped his keys and was unable to contact his mother.  D1 paid him $600 for his labour.

20.  At the time of arrest, D1 had $270 in his possession which he said under caution was all that was left from the stolen property and its proceeds.

Criminal records

21.  D1 has two previous records comprising four convictions.  In August 2013 he was convicted of theft involving shoplifting and he was sentenced to a fine of $2,000 and compensation in the amount of $258.  In February 2014, he was convicted of two offences of common assault and one offence of Assault occasioning actual bodily harm.  He was sentenced to detention in a detention centre.

22.  I have been informed by the Prosecution that the assault offences were committed prior to the present offences.  I have also been informed by the Prosecution that one other arrested burglar under the present 1^st Charge was warned for his participation under SP’s discretion; and that there were other burglars at large.

23.  D2 has hitherto enjoyed a clear record.

Personal particulars

24.  D1 is aged 20, having received education to F4 level.  He was a cleaning worker at the time of arrest.  Both of his parents are deceased.  He has had no fixed place of abode since 2013.

25.  D2 is aged 19, having received education to F1 level.  He was unemployed at the time of arrest and was living on CSSA.  He resided with his mother and three younger sisters in Shek Kip Mei Estate.

Mitigation

D1

26.  Defence acknowledged that the 3^rd Charge is the more serious because it related to residential property, involved higher valued property and a victim who was D1’s own relative.

27.  Defence acknowledged that the 2^nd and 3^rd charges were committed while D1 was on police bail.

28.  The 1^st Charge was really about a group of youngsters trying to have fun and adventure at night although some organization may be inferred. It was a secondary school so there could not have been too many valuable items to be stolen.  Although the offence occurred late at night, only $30 odd were stolen.

29.  As for the 2^nd Charge, it was committed in an opportunistic manner.

30.  Defence asked me to consider the charges in a global manner because they were committed within 3 months; that they are similar in nature in that all have the element of dishonesty.  I was asked to consider the totality principle.

31.  D1 has already been released from Detention Centre on         16 July 2014. The fact that he has only served 5 months’ detention shows that he was successfully reformed.

32.  D1 is still eligible to be sent to Training Centre.  The duration of detention in Training Centre would be in line with a term of imprisonment under the present charges.

33.  Defence confirmed that the assault offences on the criminal record were committed prior to the present offences.

34.  D1’s mother died of overdose of drugs when he was 4 years old.  His father died of the same cause 10 years ago.

35.  Since then, D1 was looked after by his aunt, victim of the 3^rd Charge.

36.  The aunt, who has already forgiven him, is willing, once he is released from custody, to take him to the Mainland and entrust him to a distant relative of hers.

37.  A letter written by a social worker from the Boys’ and Girls’ Clubs Association of Hong Kong dated 25 September 2014 pleading for leniency was submitted.

D2

38.  D2’s father died two years ago.

39.  The 1^st Charge was really a naughty adventure.

40.  A letter written by D1 dated 30 September 2014 was submitted.  Contents were generally that he was remorseful and wanted to reform himself to become a role model for his younger sisters.

Sentences and Reasons for them

41.  At the request of defence counsel, I called for, in the case of D1, Training Centre and Young Offender Assessment Panel Reports; and in the case of D2, Detention Centre, Training Centre, Rehabilitation Centre, and Young Offender Assessment Panel Reports.

42.  In the case of D1, both reports are favourable although the Training Centre Report does reveal that the present 1^st Charge too was committed while D1 was on police bail.  It was said that his performance during his detention in Detention Centre from February to July 2014 was fair; and that after the detention, “he had made more reflection over his problems and showed much regrets for his repeated unlawful behaviour which greatly disappointed his paternal aunt.”

43.  The said Panel concluded by saying that D1 is “in need of long-term training programmes in a disciplinary setting to help him modify his social values and to strengthen his sense of law-abidingness.”

44.  I agree with those sentiments and therefore, despite the seriousness of the present offences, I consider that it would benefit D1 and the society more if he was sent to a Training Centre instead of prison.  I therefore sentence D1 to a term of detention in a Training Centre for all three charges, to run concurrently.

45.  In the case of D2, the Joint Centres Report and the Young Offender Assessment Panel Report both recommended that D2 be sent to a Detention Centre.  In particular, the said Panel reported that D2 “had gained little insight into his problems generated from his loose life and failed to put forth a concrete rehabilitation plan”; and that, “taking into consideration his superficial remorse, the serious nature of his offence and his weak family sanction, the Panel opined that a period of strict disciplinary training with sharp and shocking impact is necessary to cast him a deterrent effect and help him build up an industrious life.”

46.  I am of the view that given his previous clear record, D2 is reformable and I adopt the recommendations as per the reports and therefore sentence D2 to a term of detention in a Detention Centre as punishment for the 1^st Charge.