HKSAR v. Leung Siu Sing, Gene and Another

DCCC 404/ 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 404 OF 2009

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Reasons for Sentence

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Charges and facts

1.D1 pleads guilty to 3 charges of burglary.  The 1^st and the 2^nd charges relate to him singly whereas the 3^rd charge relate to him and D2.  D2 also pleads guilty to the 3^rd charge.  All 3 charges relate to burglary of the Tung Wah Group of Hospital Tsui Tsin Tong School, at 25 Waterfall Bay Road, Aberdeen (“School”).  The offences took place on 3 divers occasions, namely 21^st January 2009 (1^st charge), 25^th January 2009 (2^nd charge), and 12^th February 2009 (3^rd charge). 

2.In the 1^st charge, the glass window of a staff room was broken.  The lock of the door was prized.  From inside the room, some properties were moved to outside the room.  No properties were stolen.  Fingerprints were lifted from the door.  The fingerprints matched those of D1.  It cost $500 to replace the window glass.    

3.In the 2^nd charge, from the School were stolen the following properties, amounting to a value of $32,098 in total:

(1)  2 notebook computers;

(2)  7 digital cameras;

(3)  1 MP3 player;

(4)  about $100 cash.

4.In the 3^rd charge, from the School were stolen the following properties:

(1)  1 video camera;

(2)  1 remote control;

(3)  1 set of electric wire;

(4)  3 digital cameras;

(5)  1 plastic box containing $79 cash;

(6)  1 bag;

(7)  1 pair of walkie-talkies;

(8)  1 memory card reader;

(9)  1 notebook computer;

(10)  1 computer mouse pad;

(11)  1 speaker;

(12)  1 battery cell;

(13)  1 bottle of correction fluid;

(14)  1 purse containing $181 cash.

5.As the School had been burgled on the 2 prior occasions, the police mounted an operation in the vicinity.  In the early hours on the date of the 3^rd offence, D1 and D2 sneaked into the School.  The police approached them.  They tried to flee but in vain.  Those 14 items of stolen properties listed under the 3^rd charge were recovered from a body search on D1 and D2. 

6.After arrest and caution, D1 admitted the commission of the 1^st and the 2^nd offences by himself and the 3^rd offence with D2.  He had used scissors and a cutter to prize the door.  He had sold the stolen properties in the 2^nd charge for $1,204 to a hawker in Apliu Street, Shamshuipo.  D2 admitted the commission of the 3^rd offence with D1. 

Mitigation put forward

7.D1 is 17 years of age.  He has a clear record.  His parents separated more than 10 years ago.  His father was busy working as a plumber.  There was little time for the supervision and guidance of him.  He quit school before completing F.2.  He did various unskilled jobs.  He frequented game centres, public parks, and football fields.  Sometimes he stayed out overnight.  He was jobless at the time of the arrest.  He committed the present offences out of greed. 

8.D2 is 17 years of age.  He has a clear record but 3 instances of Superintendent’s Discretion in 2006 each for theft.  His parents were doting on him.  They fail to supervise or guide him properly.  He has been studying in F.4 at the time of the offence.  He has quite a lot of commendations for performance in extra-curricular and community activities.  However, he has equally a lot of mingling and late or overnight merriments with bad peers. 

9.D1’s and D2’s respective solicitors have asked me to call for Probation Report and Community Service Report apart from any other reports.  I order such Reports with a clear indication that they are unlikely sentencing options.   

Sentencing principles

Sentencing 17-year old defendants

10.Section 109A of the Criminal Procedure Ordinance, Cap. 221,  states that:

(1)  No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

(1A)  This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by Schedule 3.

The offence of burglary in the present case is not an excepted offence.  Imprisonment shall remain the last option. 

Prior sentencing options

11.Apart from the aforesaid Probation Report and Community Service Report, I have also called for Training Centre, Detention Centre, and Rehabilitation Centre together with Suitability Report from the Young Offender Assessment Panel for each of D1 and D2.  The Reports do not recommend probation or community service but recommend both D1 and D2 to Detention Centre.    

12.Section 4(1) of the Detention Centre Ordinance, Cap. 239, states that:

Where a person who is apparently a young offender is found guilty of a relevant offence the court may, if it is of the opinion that in the circumstances of the case and having regard to his character and previous conduct it is in his interest and the public interest that he should undergo a period of detention in a detention centre, in lieu of imposing any other sentence, make a detention order against him.

The sentence I pass

13.In D1's case, I am satisfied that it is in the interest of the community and that having regard to his character and previous conduct, and to the circumstances of the offences, it is expedient for his reformation and for the prevention of crime that he should undergo a period of training in Detention Centre.  This is the sentence for all 3 charges he faces.

14.In D2's case, I understand that he wishes to be put on probation.  His wish is only one of the factors, indeed not a major one, for my consideration.  He is no doubt an intelligent but wayward child. 

I am satisfied that it is in the interest of the community and that having regard to his character and previous conduct, and to the circumstances of the offence, it is expedient for his reformation and for the prevention of crime that he should undergo a period of training in Detention Centre.  This is the sentence for the charge he faces.