HKSAR v. Wong Ho Yan

DCCC 1139/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1139 OF 2011

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Reasons for Sentence

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Charges

1.The Defendant burgled a school and made off with 3 keys (1^st Charge).  When arrested, he misled the police by a false name and identity card number (2^nd Charge). 

Facts

2.In the late evening on 5 September 2011, the anti-theft alarm of a primary school in Kowloon Bay was activated.  The security guard spotted the Defendant running out of the general office to climb over the fence of the covered playground.   Three keys were stolen from the general office.  These facts constituted 1^st Charge.

3.A passer-by, YIP Chi-wai, saw him climbing off the fence, reported it to the police and followed him.  The police arrived at a convenience shop in Ping Shek Estate.  After arrest and caution, he admitted the burglary.  He had climbed up the main gate to enter the school.  He stole 3 keys from a bag in the office.  The stolen keys were discarded subsequently.

4.He could not produce his identity card.  He purported to give the police his name and identity card number, both of which turned out to be false upon investigation.  After arrest and caution, he admitted giving a false identity so as to foil a warrant of arrest issued by Kowloon City Magistracy.  These facts constituted 2^nd Charge.   

Offenders under 21 years of age

5.Section 109A of the Criminal Procedure Ordinance, Cap. 221, provides:

(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.

6.Burglary is not “an excepted offence” by Schedule 3.  It means that the Court shall only consider a prison term as a deferred option.   

Range of prison terms

7.For non-domestic burglary, the starting point shall be 2 ½ years for a first offender of full age (Attorney General v Lui Kam Chi [1993] 1 HKC 215).  Such a starting point related to burglaries with no aggravating factors (HKSAR v Sim Ka-wing CACC 450/2000). 

8.There are no sentencing guidelines for misleading the police.  The statutory maximum is a fine of $5,000 and 6 months.    

Defendant’s personal background and mitigation

9.He is 18 years of age, F.2 level. His family consists of his working parents and a younger sister.  He has lost contact with them.  His last job was as a barber.  He was unemployed at the time of arrest. 

10.His solicitor has suggested it was an opportunistic burglary.  I see little support for this.  In his written mitigation (para. 10) he was said to be unrelated to the school.  As I see it, opportunism is clearly out of the question for one having to climb over the main gate to enter a school to which he was unrelated in order to steal. 

11.Between July 2008 and November 2011, he had 3 convictions for theft and 1 for robbery.  He had been sentenced to the reformatory school and at present he is in the DATC.  I am told that he is a drug addict.  His solicitor asks me to call for Training Centre and Detention Centre Reports as alternative options but I do not see where his drug addiction can place him if not in DATC. 

12.With his 4 previous convictions for theft and robbery not long time ago, he has to be regarded as a recidivist offender of dishonesty crimes.  This is an aggravating factor in his sentence. 

Sentencing this Defendant

13.I take 3 years as the starting point for burglary (1^st Charge).  One-third off for his plea of guilty, the sentence is 2 years.  There are no other mitigating factors. 

14.I take 3 months as the starting point for misleading the police (2^nd Charge).  One-third off for his plea of guilty, the sentence is 2 months.  There are no other mitigating factors.

15.The overall sentence of 2 years and 2 months on a consecutive basis is not too long in my judgment.  I make no reduction based on totality.