HKSAR v. Yip Wing Chuen Jacky and Others

DCCC69/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 69 OF 2011

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

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

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

Reasons for Sentence

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

1.The three defendants have each pleaded guilty to a single offence of burglary.

2.This offence was committed on 13 March 2010 at a building known as the P’NSuperstore in Kingswood Ginza Shopping Arcade at Tin Shui Wai.  Each defendant has agreed a set of facts and I convicted them upon the agreed facts that they have made.

3.Prior to this offence, all three defendants had a clear record.

4.The facts agreed show that the Park’NSuperstore is located within a shopping mall at Tin Shui Wai and the burglary took place in the early hours of the morning.  The mall of course is under 24 hour a day surveillance by CCTV cameras. 

5.The case was that the 1st and 2nd defendants were observed inside the mall.  A security guard was dispatched and the 2nd defendant apparently pretended to be detaining the 1st defendant.  The 1st defendant was in possession of a bag and some pliers and a hammer were found nearby in a lift lobby.  The bag contained the end product of the burglary, which was five bottles of wine valued at some $600-odd.

6.Other than the fact that the burglary was in the early hours of the morning and that some tools in that a hammer and pliers were used, and also it was apparent that the people themselves, the defendants, obtained masks and a hat to disguise themselves, other than those factors, one could describe it to have been a petty burglary.  It was a break-in to an open plan supermarket for the purpose of stealing some consumable items, such as wine, of low value.  I have to bear in mind the nature of the offence in that sense when considering the appropriate level of sentencing for these defendants.

7.The defendants were apprehended and all defendants in fact made admissions in which they admitted their roles in the offence. 

8.To put it briefly, there were, based on the admissions, four people:  one a wanted person who has subsequently been apprehended, a 17-year-old boy, and the three defendants.  The 1st and 2nd defendants appeared to be lookouts and the 3rd defendant appeared to enter the premises together with the person who was the wanted person at the time.

9.That is the background to the offence and all the defendants admitted their particular roles in the offence in the course of records of interview.

10.I obtained pre-sentence reports on all the defendants.  They are all of clear record. 

11.Given the nature of the burglary, I considered that a Community Service Order could in certain circumstances be an option for sentencing, but I also obtained reports from the Correctional Services Department as to the possibility of disciplinary training for all defendants. The ages of the defendants permitted that, the 1st defendant being 22 years old, the 2nd defendant being 20 years and the 3rd defendant being 19 years old.

12.Dealing with the 1st defendant, he is aged 22, so he was eligible for Detention Centre.  The report from the Correctional Services Department showed that he was not fit medically for such a detention. He is unfortunate enough to suffer from thalassaemia so he could not be considered as suitable for training in Detention Centre.

13.I also obtained a Background Report on this defendant to see if he was suitable for any other disposal, and to deal with the conclusion of that report, the defendant was initially described as a disorientated teen, described as being complacent, on growing up did not have a stable job, and described the committing of this offence as a result of impulsiveness and immaturity. 

14.However, following his arrest, he appears to have changed his approach to life.  He has secured a training opportunity with the Emperor Financial Services, he has formed a stable relationship with a young lady, he receives support from both family and his new girlfriend.  He is described as having a decent family background.  He is seen as a person who has a good chance to live a productive life in the future.  He has a past record of service with Venture Scouts, and at least the Probation Services consider him suitable for a rehabilitative program such as community service.

15.As far as the 2nd defendant, he is 20 years old. He also was unsuitable for treatment in the Detention Centre.  However, following a general assessment, he was found to be suitable for detention in a Rehabilitation Centre.

16.As far as this defendant is concerned, he came from a middle class family and had under-achieved at school.  There were difficulties with his family.  He was unfortunately described by the Probation Service as having an evasive attitude, playing down his role in the incident. There was a weak family guidance and it was considered he was not suitable for a Community Service Order.

17.As far as the 3rd defendant is concerned, he is 19 years old.  He was also considered by the Correctional Services Department and he is considered to be suitable for detention in a Detention Centre.  This defendant, although of clear record, has been warned by a Superintendent’s Warning in the past, in 2009, in relation to a wounding offence. 

18.The Correctional Service Department noted he came from a working class family and he was deprived of parental supervision and guidance.  For him, delinquent group association is described as being the bane of his life.  He identified himself with the delinquent sub-culture.  He was cautioned by the police in 2009 and the Correctional Services Department note this did not result in any dissociation from dubious peers and he came back into conflict with the law and landed himself into this case.  They decided he needed more insight into his problems and strengthen his law-abiding mindset and because of this, a short period of disciplinary training coupled with statutory supervision would benefit him.  It was considered the correct sentencing option for him would be the Detention Centre rather than the other two options of Rehabilitation or Training Centre.

19.There is a Probation Officer’s Report Background Report which echoes the view taken by the Correctional Services Department. They describe him as being playful, impulsive, without consequential thinking, a weak self-will and lacking a law-abiding concept.  It would seem he is not capable to face down temptation.  The conclusion was that disciplinary training is deemed conducive to rebuilding his character.  They did note that he had learnt a lesson and considered that a Community Service Order could be imposed, but that was on the basis that disciplinary training was deemed more conclusive to rebuilding his character.

20.Those are the recommendations that I have in terms of sentencing based on the reports that were prepared for me.

21.In sentencing these defendants I bear in mind, firstly, that they are all young men.  This is the first time any of them involved themselves in any kind of dishonesty.  They may have had problems in their lives in the past but this is the first major criminal enterprise they have embarked upon.

22.I also bear in mind that this is defined by the law as a burglary of a commercial premises and a Community Service Order as recommended in the 1st defendant’s case could only be imposed in what is described as in an exceptional case.

23.Now, as far as the 1st defendant is concerned, other than a prison sentence, that is the only sentencing option that remains because of his age.  I have to determine in his case whether it would be an appropriate form of sentencing, given that I remanded him on the basis that it may well have been appropriate for disciplinary training in a Detention Centre to be an appropriate sentence for him.  That has been ruled out as a possibility now. 

24.Given that that is the case, is it appropriate that I in fact impose the tariff sentence or some modification of that or impose a Community Service Order?  Is there anything exceptional in his case?

25.Firstly, he is young, he is 22; secondly, he is a first offender; thirdly, he has a very good assessment report; fourthly, he appears to have learnt his lesson and is remorseful; fifthly, there is an observable change in his life.  He has become ambitious and wishes to involve himself in financial services and has obtained employment; sixthly, he has become involved in a stable relationship. 

26.In relation to the offence, he immediately volunteered information to the police that made investigation of the other defendants easier; and finally, the offence itself was, as I have described it earlier, a petty form of burglary involving the taking of low value consumables.  This defendant is described as a person who has a good chance to live a productive life in future.

27.I consider that the circumstances of this offence are sufficiently unusual or exceptional to allow that possibility to take effect. 

28.For that reason, in respect of the 1st defendant, I will impose the Community Service Order that is recommended by the Probation Services.  That will be an order for 220 hours of community service. I will now explain to the defendant the nature of that order and his responsibilities under it.

29.The defendant is required to provide a total of 220 hours of unpaid work to the community.  This work must be done at the direction of a supervising officer and within the time allocated.  In any event, the work must be completed within 12 months of today.  If there is any difficulty in completing the work, that matter must be referred back to this court. 

30.The defendant must keep the peace and be of good behaviour generally.  He must tell his supervising officer if he changes his employment or his residence.  He must complete the work in the time allocated to the satisfaction of the supervising officer. 

31.If he commits any further offence or breaches any of the conditions of this order, he will be brought back to this court and sentenced again for the offence of which he was originally convicted.

32.Can the defendant please indicate if he understands the nature of this order and if he consents to perform the work under the Community Service Order?

1ST DEFENDANT: I am willing to.

COURT: And does he understand the nature of his commitment?

1ST DEFENDANT: I understand.

33.There will be a document the defendant will be required to sign which will have a reporting condition on it.  He must comply with that reporting condition.

34.I turn now to the 2nd defendant.  I have already outlined the contents of the reports in his case.

35.The defendant again is a young man aged 20.  The non-custodial option of a Community Service Order is not appropriate for him given the contents of the reports that I have.  This defendant does require continued advice and training that would be available in the Correctional Services Department’s list of programs. 

36.As far as the 2nd defendant is concerned, I will follow the recommendation in his case, that he be detained in a Rehabilitation Centre.

37.Turning to the 3rd defendant, he is a 19-year-old boy.  He has a recommendation that he be detained in a Detention Centre, and also the contents of the Probation Report which I have already described, which opened the possibility of a Community Service Order.

38.Given the overall circumstances of his reports, the 3rd defendant would obviously still continue to benefit from training of some kind and a Community Service Order would not give him that opportunity.  He clearly needs direction and training and that can be provided as recommended under the Detention Centre program, so as far as the 3rd defendant is concerned, I will order that he be detained in a Detention Centre.