HKSAR v. Wong Hei Kin and Another

DCCC115/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 115 OF 2010

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Before: Deputy District Judge Woodcock

Date: 27 July 2010 at 2.49 pm

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Reasons for Sentence

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1.The 1st defendant pleaded guilty to one count of burglary, section 11(1)(b) and (4) of the Theft Ordinance, Cap.210.

2.He admitted in the facts that he was a lookout. 2nd defendant had at the material time put his hand through a slatted window and took what he could reach.  The values of the items stolen were not great.  I do not intend to go through all the facts of the case but that the 1st defendant was only just 14 at the time of the offence.

3.2nd defendant pleaded not guilty and stood trial.  Ultimately, he was convicted of an alternative charge of theft and acquitted of burglary. 

4.As the 1st defendant was of such a young age, I called for a variety of appropriate reports.  At the time, defendant had a clear record but for two superintendent cautions.  The reports deem him suitable for a detention in a detention centre.  Probation officer recommends probation. 

5.I will deal with the sentence of the 1st defendant.  I will follow the probation officer’s recommendation.  The conclusion is that although you are very young, you have no discipline or regulation in your life.  You have associated with very undesirable peers from a very young age, and you have run wild.  You have been involved with triads, with drugs and have been arrested several times.  Your family have tried to control you.  They do still support you.  Your father was here on the last occasion.  You have had social welfare assistance.  Your father has had social welfare officers assisting him.

6.For those reasons, the probation officer, in view of your young age and your lifestyle, is of the view that probation could help and is recommended.  So for the charge that you have pleaded to, I will impose a 12-month probation order.  There are four conditions that you must comply with: firstly, that for the first six months as of 27 July, that is today, you will reside at the Tuen Mun Juvenile Home for 6 months; secondly, upon your discharge from the juvenile home, you will reside, study and work as directed by the probation officer; thirdly, you will obey directions regarding peer association; fourthly, you will observe a home curfew as directed. 

7.If you breach any of these conditions or the probation officer is not happy with your behaviour, he or she will have you brought back before court.  The court, if satisfied you are not discharging this probation properly, will impose, instead of probation, another type of punishment, re-sentence you, effectively, and it will be detention centre as recommended.  Do you understand?

1ST DEFENDANT: Understand.

8.The 2nd defendant pleaded not guilty to burglary but was ultimately convicted of theft.  You were given the benefit of the doubt.  You are only 16 years old but have several convictions already to do with violence and theft.  Your background is rebellious.  You have come from a family background where your parents have had to work to make ends meet, and their supervision of you from a very young age has been very lax.  Obviously, you then did not apply yourself at school and started as an unpromising student.  You became affiliated with triads, gangs and drugs.  As I have said, you have several convictions and presently are serving a probation order for Kwun Tong case 556/2010.

9.After convicting you of theft, I adjourned for reports.  I obtained detention centre, rehabilitation centre and training centre reports as well as a probation officer’s progress report.  I also have had sight of the Kwun Tong file for which you are now presently serving that probation order.

10.The detention centre and training centre does not deem you suitable because they are of the view that you are drug‑dependent even though you are only 16.  Probation officer is of the view that she recommends that you continue on probation.  You have been living as part of that probation order at the Christian New Being Fellowship in Sai Kung since May 2010.  My view is that this is an excellent centre for youths with drug problems, and if you are going to be successful anywhere, it is going to be here.

11.You have not had an easy start there.  You have had huge adjustment problems, which is understandable, considering you have been running wild since, as far as probably you can remember, now you have to live under institutional rules and you have already had warnings, but Mr Chu, a social worker there, is of the view that you are showing some improvement. This probation officer of course seeing you, hears from you that you are remorseful, that you promised to do this, to do that.  It is very easy to say, harder to actually put it into practice.

12.Your mother is obviously very concerned about you as is the rest of your family.  They have not given up on you, and you have made them all sorts of promises to turn over a new leaf.

13.Probation officer says at the end of her report that your performance is fair with slight and gradual improvement, but she is still prepared to persevere with you.

14.You also face another case, a Kwun Tong case, which I will also deal with, KCCC3946/2010.  I will mention here that it is again a serious charge, perverting the course of justice.  The facts are serious.  If it had not been for your young age, if you were older, this offence would carry an immediate custodial sentence.  

15.I am hoping it is not too late.  I have heard all the mitigation.  The reports are as detailed as can be, and you are a borderline case for continuing probation.  But for the fact that you are already at the Christian New Being Fellowship, I would have called for a drug addiction treatment centre report.  I am inclined to let you stay there and hope that you will complete this period of training successfully, but I am going to keep an eye on your performance and under probation, I will be calling for a progress report.

16.For this District Court case, I am going to deal with you in this manner.  You will be ordered to be put on probation for 18 months.  This will be concurrent to your present probation of KT556/2010.  These are the conditions that you have to comply with: first, work, study, reside as directed; abstain from all kinds of dangerous drugs; thirdly, submit to random urine tests as directed; fourthly, attend and complete such drug withdrawal treatment programme as directed, including any residential programme; fifthly, obey reasonable directions regarding association with persons or groups of persons; sixthly, observe a home curfew as directed; attend any rehabilitation programme or training as directed.  Do you understand?

2ND DEFENDANT: Understand.

17.Right.  For Kwun Tong case 3946, I also will impose an 18‑month probation order with seven conditions.  I will not repeat them.  I have just set them out.  This Kwun Tong probation order will also be served concurrently to your present Kwun Tong order plus the District Court 115/2010 order.

18.I will explain to you again.  If you breach any of these three probation orders conditions, you will be brought back before the court.  The court will have the power to discharge the probation and re-sentence you, and what will happen is you will, if you are still a drug addict, go to a drug addiction treatment centre.  And if you are drug-free, then you will go to either training centre or detention centre.  That I can all guarantee you.  All right?

19.For the Kwun Tong case, I intend to call for a progress report in four months’ time.  Obviously, if any problems arise between now and that date, probation officer will not wait for four months.  She will bring you back before the court much earlier.  The progress report for that case will be on 29 November, Eastern Magistracy, Court 1, 9.30. 

20.I will add here that the probation officer will decide whether you need to attend court or not.  If she is very happy with your performance, you will not be required to come.  I will look at the report and deal with it in your absence.  If problems arise or she thinks that you should come before the court to have the report explained to you, then she or he will inform you that you will be coming to court.  Do you understand all of those?

2ND DEFENDANT: Understand.

(Discussion re progress report for the Kwun Tong case)

21.Yes, for both magistracy cases.