HKSAR v. Chan Ho Chi

DCCC 313/2019

[2019] HKDC 1137

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 313 OF 2019

-----------------------------

-----------------------------

-----------------------------------------

REASONS FOR SENTENCE

-----------------------------------------

Introduction

1.The defendant is convicted upon his own guilty plea of one charge of attempted theft.  The property the defendant attempted to steal was two Rolex watches.

Facts

2.At about 6:30 pm on 19 February 2019, the defendant went to a jewellery shop called “Emperor Watch & Jewellery” at Shop G05, G/F, Emperor Group Centre, 288 Hennessy Road, Wan Chai.  He requested a salesperson Mr Wong to show him two Rolex watches (“E1” and “E2” valued at HK$593,800 and HK$432,500 respectively).  The defendant tried E1 and E2 on and attempted to walk away from the display cabinet.  Feeling suspicious, Mr Wong intercepted him and prevented him from walking further away from the display cabinet.  The defendant then returned E1 and E2 to Mr Wong and left the shop.  Soon afterwards at 6:36 pm, the defendant returned to the shop and repeated the same attempt but was stopped.

3.At about 6:55 pm on the same day, the defendant went to the shop the third time.  He tried E1 and E2 on again.  At 6:59 pm, the defendant held E1 and E2 and rushed towards the shop’s exit.  Before he could leave the shop, he was intercepted by Mr Wong and subdued by Mr Wong and two other salespersons.  The case was reported.

4.Upon arrest and under caution, the defendant said he owed others a debt of HK$100,000 and so he stole the two watches for sale in order to repay his debt and to pay for his grandmother’s medical fees.

5.In a subsequent video-recorded interview, the defendant said inter alia that:-

(i) He had to repay HK$100,000 to several friends within February 2019;

(ii) He needed HK$500,000 to pay for his grandmother’s operation and medical fees;

(iii) He did not know the values of the watches; and

(iv) He intended to pledge the watches at a pawn shop.

Antecedent

6.The defendant has a clear record.  He was born in April 2000 and is now 19 years old.  He received education up to Form 4 level.  He started to work when he was 15.  Between March 2018 and February 2019, he worked as a part-time waiter with a daily wage of HK$700.

Mitigation

7.Mr Pun relied on his Skeleton Mitigation dated 1 August 2019.  It was submitted inter alia that:-

(i) The true values of the two watches were unknown to the defendant at the material time;

(ii) The defendant had a clear record;

(iii) He was diagnosed with attention deficit hyperactivity disorder in 2006; and

(iv) He attempted suicide twice, once in October 2015 and once in November 2018. After his second attempted suicide in November 2018, he was diagnosed with acute stress disorder and acute intoxication of alcohol.

8.Mr Pun submitted that although the present case was not a breach of trust case, the court could make reference to HKSAR v Cheung Mee Kiu[1] and adopt a lower starting point.

9.A number of mitigation letters, academic certificates and extra-curricular certificates were also submitted to this court.

10.As the defendant is now 19 years old, Mr Pun referred this court to section 109A of Cap. 221 and asked this court to call for a suitability report for Training Centre, Detention Centre, Rehabilitation Centre, Probation Order and Community Service Order.  As this case involved two Rolex watches totally worth over HK$1 million, I did not consider Probation Order or Community Service Order appropriate. I called for a suitability report for Training Centre, Detention Centre and Rehabilitation Centre (“Suitability Report”).

11.The Suitability Report is now available. It is concluded that the defendant is mentally and physically fit for detention in a Detention Centre, a Rehabilitation Centre or a Training Centre and that the defendant is more suitable for detention in a Detention Centre.

Sentence

12.Regarding Mr Pun’s submission that the defendant did not know the true values of the two watches, it is noted that the defendant went into a luxurious jewellery shop thrice and asked for two Rolex watches to try on.  Both of the Rolex watches had rings of diamonds attached on the rims.  They also had price tags attached showing their respective prices.  I am not convinced that the defendant did not know the values of the watches.  After all, he said under caution that he was in need of a total of about HK$600,000 to repay his debts and to pay for his grandmother’s medical fees. 

13.I note the conclusion of the Suitability Report but I do not consider it appropriate to order the defendant for detention in a Training Centre as the length of detention in a Training Centre may end up longer than an imprisonment term the defendant would have served.  Whilst the Detention Centre provides a ‘short, sharp shock’[2] and ‘rigorous’[3] regime which would benefit a young offender most in terms of ‘disciplinary training, reformation and punishment’[4], the purposes of sending a young offender to the Rehabilitation Centre have been defined as including:-

(i) deterring young offenders from committing further crimes;

(ii) correcting the delinquent values and behaviour of young offenders;

(iii) helping young offenders to develop socially acceptable behaviour and respect of law;

(iv) equipping young offenders with social and other skills; and

(v) preparing young offenders for a successful reintegration into society upon discharge.[5]

14.The judgment of Lunn J (as he then was) in HKSAR v Cheung Ka-ho [2007] HKCU 509 was referred to in paragraph [50-41] of the 8^th edition of Sentencing in Hong Kong which reads:-

“In HKSAR v Cheung Ka-ho [2007] HKCU 509 (HCMA 24/2007, 22 March 2007, unreported), the accused was convicted of the offence of possession of an offensive weapon. The magistrate, having considered the options of making a probation order, a detention centre order or a rehabilitation centre order, sentenced the accused to detention in a rehabilitation centre. That was on the basis that he required a short, sharp period of punishment which would be combined with career training…. The rehabilitation centre was felt to be preferable to the detention centre because the career training and career assistance it offered would be more beneficial to the accused.”

15.Having considered mitigation submitted by Mr Pun and the Suitability Report, I am of the view that detention in a Rehabilitation Centre is more appropriate to reflect the seriousness of the present offence and more beneficial to the defendant for his future development after discharge.

16.I therefore sentence the defendant to detention in a Rehabilitation Centre.