HKSAR v. Wan Wai Keung

DCCC 1186/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO. 1186 OF 2008

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HKSAR

v.

WAN WAI KEUNG

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Coram: Her Honour Judge M. Yuen in Court

Date: 19 February 2009 at 2:30 p.m.

Offence:    Burglary (入屋犯法罪)

Reasons for Sentence

1.The defendant was arrested on 2 August 2008 as a result of information received. Under caution the defendant admitted to 2 offences of burglary, which happened in the year of 2006, about 2 years before the defendant’s arrest.

2.The defendant admitted to acting as a lookout in both burglaries. In the first burglary he and his accomplices prized open a stall at a barbecue site in Sai Kung and stole cash about HK$10,000 from the stall. The defendant said he was only given HK$1,000 as his share of the loot. In the second burglary the defendant and his friends broke into the school, of which the defendant was a former student. They stole 5 projectors, which were subsequently sold off for a profit.

3.The defendant indicated his intention to plead guilty to both charges at his first appearance in the District Court.

4.The defendant came from a working class. His parents are at work. He grew up with his grandparents who are fishermen. This is a stereotyped case of a young boy losing interest in his studies, got no long term permanent employment, and has fallen preyed to adverse influence. He was lured into drug abuse and illicit activities.

5.The sentencing tariff for a single count of burglary on a non-domestic premises has been well established to be a term of 2 ½ years imprisonment since the 1980s (see authorities such as Li Ming CACC-480/1985 and Lau Siu Kwong CACC-628/87). The same approach has been adopted and utilized in current cases in the year of 2008 (see more recent cases of Cheng Wai Kai CACC-338/2007 and Ng Ngai Shan  CACC-197/2008).

6.When a defendant committed more than one offence of burglary, the norm is not to impose concurrent terms in respect of his separate transgressions (see Li Ming CACC-480/1985; Lui Kam Chi CAAR-1/93)

7.The properties stolen were HK$10,000 and 5 projectors. The properties are not of minimal value but are not at the top end of the scale of the stolen properties. The summary of facts did not suggest any use of violence on persons within the premises, as the premises in question were likely unattended when the offences were committed.  The missing projectors would have occasioned financial loss to the school as well as some likely disruption to the classes in school.

8.No other aggravating factor present in the present fact circumstances apart the duplicity of the defendant’s criminal activities within a year and the defendant has acted in concert with his accomplices, the appropriate sentences to be meted out for the defendant under the present fact circumstances are terms of 2 ½ years for each of the 2 burglary charges. Giving the defendant his credit for his pleas of guilty to both charges, his 2 ½ years-term could be reduced to terms of 20 months for each of the 2 offences.

9.To reflect totality, a total term of 2 years 4 months (with 12 months of the term for the 2^nd charge to run concurrently with the 1^st charge leaving the balance of 8 months to be served consecutively) would be justified.

10.Nevertheless the defendant would only have made nineteen years of age by 31 March this year. These were his first transgressions of the law, which he committed back in 2006. I am faced with a decision between sending an 18 years old youngster with a clear record to a hard core incarceration for 2 years and more or whether this court should exercise clemency to adopt a reformatory approach.

11.The defendant’s solicitor has urged upon this court to consider a probation order. Bearing in mind the seriousness of the offence, the duplicity of his acts and the defendant’s personal background, I do not consider such option suitable.

12.With his young age and his likely corresponding mental immaturity, bearing in mind in particular his current ketamine usage, I accept a structured rehabilitative, educational with aftercare supervision programme would likely be of more benefit to him and the society in the long run.

13.Giving credit for his remorseful attitude, bearing in mind his personal background and his offences were committed 2 years back when he was only 16 years of age, I accept he deserves a chance to be given to be allowed to reform in a rehabilitative setting rather than receiving a retributive mode of punishment. I sentence the defendant to the training centre for his 2 burglary convictions and hope he makes use of this chance given to him.