HKSAR v. Ng Cho Fai and Another
Read the full judgment text of DCCC 634/2016 on BabelCite. This District Court judgment.
1. Thedefendants (D1 and D2 on the indictment and so termed throughout) have each pleaded guilty before me to the charges they each face. D2 has admitted 3 counts of theft, contrary to Section 9 of the Theft Ordinance, Cap 210. They have both admitted Count 4, burglary contrary to Section 11(1)(b) and 4 of the Theft Ordinance, Cap. 210, where they are jointly charged with the offence of burglary.
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DCCC 634/2016 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 634 OF 2016 -----------------
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------------------------------------------- REASONS FOR SENTENCE ------------------------------------------- 1.Thedefendants (D1 and D2 on the indictment and so termed throughout) have each pleaded guilty before me to the charges they each face. D2 has admitted 3 counts of theft, contrary to Section 9 of the Theft Ordinance, Cap 210. They have both admitted Count 4, burglary contrary to Section 11(1)(b) and 4 of the Theft Ordinance, Cap. 210, where they are jointly charged with the offence of burglary. Facts 2.The facts admitted by D1 and D2 revealed that at about 5.20 p.m. on 7 May, 2016, a school janitor was patrolling on the Ground floor of the C.C.C. Mong Man Wai College, a secondary school in Kwun Tong, when she found D1 there, carrying a black bag containing 12 books. When questioned, D1 claimed to have taken these books on behalf of his friends. The janitor thought this suspicious and informed a teacher of the school. The teacher arrived at about 6 p.m. together with police officers to investigate. The teacher recognized D1 as a former student of the school and confirmed he did not have authorization to enter the school. Inspection of the books that D1 had in his bag found that 3 of the books bore the names of current students at the school. The teacher immediately made inquiries from those three students who each denied having asked anyone to take their books. D1 was arrested and under caution admitted stealing the 12 books from Room 207 of the school to sell them. D1’s mobile phone was seized and its ‘What’s App’ history retrieved. A ‘what’s app’ conversation with telephone number 51328051 earlier on the same day disclosed that D1 was asked to wear casual clothing and meet someone at the school at 3.30 p.m. CCTV footages from the school were retrieved and shown to some teachers at the school, who recognized D1 and D2 on the CCTV footages. D1 was seen to enter the school at around 3.59 p.m. and later seen being followed by the school janitor. D2 was seen entering the school at 3.33 p.m. and leaving at around 5.25 p.m. 3.D2 was arrested at his residence on 10 May, 2016. Under caution he admitted going to the school. At a video-recorded interview under caution held on 10 May, 2016, D2 admitted that he was the user of the mobile telephone number 51328051. He identified himself on the relevant CCTV footages. He admitted that he had asked D1 to wait for him at the school at 3.30 p.m. Together they had climbed into the classroom, Room 207, through a window and taken books from students’ lockers which had not been locked. Both he and D1 had taken some books and left the classroom and gone in different directions. After he had left, he had learnt that D1 had been caught. He then threw away the books he had taken away from room 207. 4.A mobile phone and 3 books were seized from D2’s residence upon search. Initially, D2 said in the video-recorded interview under caution that he had purchased the three books from a second-hand bookstore in Mongkok. When asked about the 3 names written on the books, D2 then said he knew they were current students at the school and he had borrowed these three books from those students even though he did not know them personally. 5.The owners of those three books were contacted and confirmed the books went missing from the school, as did the owners of the 12 books found in the bag carried by D1 when he was stopped by the school janitor on the school grounds. 6.D1 and D2 had entered the school as trespassers on 7 May, 2016 and stole property therein (Charge 4). D2 had stolen the three books that had been found at his residence upon search (Charges 1 to 3). 7.I was satisfied beyond all reasonable doubt that the facts admitted by D1 and D2 supported the charges that they had each admitted, and accordingly I convicted D1 and D2 on the charges that they each faced. 8.Section 109A of the Criminal Procedure Ordinance, Cap. 221, provides that no court shall sentence a person of or over the age of 16 years and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate. Both D1 and D2 being under the age of 21 years, after hearing Counsel in mitigation, I adjourned sentence until today, calling for the full range of reports in respect of each Defendant, namely Probation, Community Service, Rehabilitation Centre, Detention Centre and Training Centre Reports, remanding both of them in custody, and warning them of the likelihood of a custodial sentence. 9.These reports are now before me and I have read them and taken the contents fully into consideration when deciding sentence. The contents have been explained by their Counsel to each defendant and each through their Counsel indicate they agree with the contents. I have also borne in mind all that has been urged upon me on behalf of each defendant as well as the contents of the various letters and other documents submitted in mitigation. Previous Convictions 10.Both D1 and D2 have clear records. Mitigation D1 11.D1 has admitted one count of burglary, namely Count 4 on the indictment. He was 19 years old at the time of the offence, He is now aged 20 years. Counsel submitted that he was still a student – he had just finished a diploma course at IVE to prepare students for university. He would be taking the Higher Diploma course. He had been raised in a single parent family by his mother – his father left the family when he was 12 – he is the only child of the family. The father did not provide any financial support, so his mother had to work to make ends meet. After his arrest, the mother felt guilty for not paying enough attention to D1. She has since changed her job so that she will work shorter hours and be able to spend more time with D1. Since his arrest, he has been very remorseful and is determined to work hard to change his life. He has participated in different voluntary work. 12.The reports before me in respect of D1 repeat much of what has been said by Counsel. I do not intend to rehearse the contents again herein. D1 clearly was affected by the divorce of his parents and the lack of a male role model in his life. His arrest for the present offence has clearly been a wake up call for all the family and for D1 himself. Clearly, he is a young man who has gone astray. Both reports speak favorably of him and probation is recommended, as is the Detention Centre. The Probation Officer opines “In view of the parents’ commitment in supporting the Accused’s social rehabilitation, coupled with the support from the paternal grandmother and the Accused’s cousin as well as that from the helping professionals including the mother’s social worker from HKFWS TKO(S) IFSC and the Principal Student Development Officer of VTC HKIVE (Lee Wai Lee), the Accused, being a fresh offender and having expressed remorse towards the present offence, deserves a chance for social rehabilitation in the open setting and probation supervision is deemed beneficial to guide him on the right track.” The view of the interviewing officer for the Commissioner of Correctional Services Report is that the “Defendant is mentally and physically fit for detention in a Detention Centre, a Rehabilitation Centre or a Training Centre. From the information available and after a general assessment of his behavior and attitude whilst on remand, I consider him more suitable for detention in a Detention Centre.” He opined that to help D1 gain insight into his problems and strengthen his law-abiding concept, a period of disciplinary training coupled with statutory supervision would be beneficial to him. D2 13.D2 has admitted 3 counts of theft and 1 count of burglary. He is now aged 20 years. Counsel submitted that he had completed the foundation diploma course in engineering science and had been accepted for the higher diploma course in IVE in building services. He, too, is from a single parent family, his father having died when he was just one. He lives with his mother, who suffers from cancer. Because of her health, D2 was under pressure – he had to study as well as care for his mother, and of course money was also an issue. He was remorseful for what he had done, and for the hurt he had caused his mother by his acts. He was ashamed that he had used his knowledge of the school in committing the present offences. 14.The reports before me in respect of D2 also repeat much of what has been said by Counsel. I do not intend to rehearse the contents again herein. Clearly, greed had a part to play in D2’s motive for committing the present offences. Both reports speak favorably of him and probation is recommended, as is the Detention Centre. The Probation Officer opines “In view of the Accused’s clear past and his willingness to reform, 18 month probation order is recommended.” The view of the interviewing officer for the Commissioner of Correctional Services Report is that the “Defendant is mentally and physically fit for detention in a Detention Centre, a Rehabilitation Centre or a Training Centre. From the information available and after a general assessment of his behavior and attitude whilst on remand, I consider him more suitable for detention in a Detention Centre.” He opined that to help D2 develop more insight into his problems and cultivate his positive moral value as well as strengthen his law-abiding mindset, a period of disciplinary training coupled with statutory supervision might sound beneficial to him.” 15.A lenient sentence is sought on behalf of each defendant. 16.The correct 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 years and 6 months’ imprisonment. I do not find that there are aggravating features here. The value of the stolen property is small and these have now been recovered. 17.I do bear in mind the classical principles of sentencing and balance amongst the need for rehabilitation, retribution, deterrence and prevention. Whilst rehabilitation for a young offender is always an important consideration, and it also serves the interest of the community, the need for punishment of the offender and deterrence of others must be given due regard. The defendants would have been fully aware of the gravity of what each was doing and the risks that would be involved if apprehended. 18.I have also borne in mind the length of imprisonment each defendant is likely to receive had he been over 21. On the other hand, I cannot overlook their ages and the need for rehabilitation. Their relatively young ages, clear records and personal circumstances have played a determining role in determining sentence. I am of the view that they are both of them reformable. They each have supporting families who will render support – these proceedings have been a wakeup call not only for the defendant but their families as well. They have both been detained whilst the reports have been prepared and they have heard the ‘clang of the prison gates’. 19.Having considered all these matters, I shall adopt the recommendations made in the Probation Officer’s report in respect of each defendant. 20.D1 on Count 4, and D2 on Counts 1 to 4, are each placed under the supervision of a Probation Officer for 18 months, with the following special conditions:
In respect of D2, the Probation Order in respect of Counts 1 to 4 will be concurrent. (effect of Probation Order and Consequences of breach thereof explained in punti to each defendant and understood by each defendant) D1: 1 agree to abide by the Probation Order and special conditions. D2: 1 agree to abide by the Probation Order and special conditions.
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