HKSAR v. Chen Sze Yeung

DCCC1084/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1084 OF 2011

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to two offences of burglary each contrary to section 11(1)(b) & (4) of the Theft Ordinance, Cap. 210, and to one offence of going equipped for stealing, contrary to that same Ordinance. That is contrary to section 27(1) of that Ordinance.

2.You admitted the brief facts and I convicted you on each of the charges.

3.The premises involved were Kam Wai Computer Shop at Fullview Garden Commercial Centre, 18 Siu Sai Wan Road.    

4.On 11 August 2011, at 1045 hours, PC53942 (PW2) and SPC52701 (PW3) saw you entering the centre in a suspicious manner.  PW2 followed you, you opened the door and entered.  The shop in question was not yet open.  You did not switch on the light and searched the counter.    

5.When you became aware of the police officer, you appeared to be nervous and squatted down.  PW2 entered and stopped you.  First, you claimed to be collecting goods for the boss but later admitted entering with intent to steal (Charge 3).

6.PW2 arrested and cautioned you and you admitted the following: 

(i) you are an ex-member of the staff;

(ii) you had made a duplicate key during your employment;

(iii) you committed the offence on more than 10 occasions; the last being the previous Saturday. The reason is because you had no money to pay for school.

7.In a subsequent video recorded interview under caution, you admitted the following:

(i) you worked as a delivery worker in early July;

(ii) you made a duplicate key to use to effect entry (Charge 1);

(iii) you knew money was put in a cash box on the shelf;

(iv) you entered there on over 10 occasions to steal cash;

(v) on some occasions there was no money;

(vi) if there was cash you stole less than $500;

(vii) you recall 7th August this year (Charge 2) but not the other dates, you stole $200;

(viii) on 11 August that the box was empty so you did not steal;

(ix) you spent the money on school fees.

8.The police found the key (P1).  PW1, the owner of the shop confirmed he had no knowledge of you making the key.  He had hired you as a causal worker in July.  He had lost money but kept no record. 

9.Defendant, you are a young man of clear record. You are now 18, you were 17 at the time of the offence.  I, therefore initially adjourned the case for probation officer’s background report, Detention Centre and Training Centre reports.  You were found suitable for training centre. However, it is my opinion that I should consider giving you a chance, and I, therefore adjourned for a report as to suitability for Rehabilitation Centre and Community Service.

10.Those reports are all before me now.  You are found suitable for Community Service and for Rehabilitation Centre. 

11.Very helpfully Mr Mok provided me with written mitigation.  I have considered what he has said very carefully.  Mitigation advanced briefly was as follows:  At the time of the commission of these offences, you were only 17 years of age, you are now 18.  You are single and educated to Form 4, Hong Kong born and residing with your parents, younger brother and grandmother.  Since September, you have been studying for Certificate in Hospitality, at a Vocational Training Centre.  However, prior to the commission of these offences your father was a decoration worker with an unstable income, your mother earning about $7,000 a month as a cleaner and you worked part-time in a pizza restaurant.  

12.Mr Lo, the victim was known to you.  You had known him for about four years, and over the last three years you had helped out at the computer shop in return for pocket money and the occasional dinner.  He paid you no actual wages.

13.The offence occurred because of the financial hardship within the family.  Your father was unfortunately injured and unable to work during this period and required medical attention in the Mainland.

14.The money you stole was used to pay for your educational expenses.  I am told the victim has forgiven you for what you did and that you have repaid the victim some $1,500.  Mr Mok stressed your plea of guilty, he also stressed your youth, your clear record, your co-operation with the police and your remorse. 

15.I was referred to various sentencing authorities. All of which are well-known to the court. 

16.The normal sentence for a mature person is a starting point of 30 months for commercial burglary.  However, in view of your youth, there is more latitude as rehabilitation is an important factor.  Mr Mok also reminded us that you suffered a substantial penalty in that you have served a month’s loss of liberty whilst on remand.     

17.I turn now to the sentence itself.  There are three offences, but in fact it is a course of conduct over a period of time. One should not play down the seriousness of these offences; they involve burglaries of premises in circumstances amounting to breach of trust, and the making of and use of the key demonstrates a level of planning and premeditation. 

18.However, I am of the opinion there are substantial mitigating circumstances here to allow me to extend the hand of mercy to you:

(i) You were 17 at the time of the commission of the offences and of clear record;

(ii) You have fully compensated the victim and the victim has forgiven you;

(iii) The reports are generally good reports;

(iv) Over a period of about 3 years you had assisted the victim with modest recompense;

(v) What I find particularly significant is that the money was taken and used for constructive purposes, that is education, not to gamble or to buy drugs. That is not to say that this court condones that act.

(vi) The financial stringency stemmed from your father’s unfortunate accident, placing the family in difficulties;

(vii) You were very cooperative at the time of your arrest making full confessions to the police and explaining exactly what you had done;

(viii) This, too, is very significant, you have served a period of incarceration whilst on remand. Therefore, you have suffered the clang of the prison gates;

(ix) You seem to enjoy the support of your family; and

(x) I accept that you are generally and profoundly remorseful.

19.In short, applying the principles of R v Brown [1981] 3 Criminal Appeal Reports S294 and 295, the criteria within that case are met in your case. 

20.You are a first offender.  You come from a stable background with a family.  You have what seems to be a good work record.  You have a realistic opportunity of working once you  achieve your qualifications. You have demonstrated genuine remorse and I believe that the risk of re-offending is slight.

21.Therefore, in all the circumstances I propose to make a Community Service Order for a period of 200 hours, on each of these offences to run concurrently.  Under the terms of that order you would perform 200 hours unpaid work by and for the benefit of the community within the next 12 months under the supervision of the probation service.  You must perform the work satisfactorily.  The only absences that will be contemplated are those supported by a medical certificate and of course you must commit no further offences.              

COURT: Are you prepared to accept Community Service?

DEFENDANT: (Interpreted) Yes, I agree.

22.Then I confirm the making of Community Service Order for 200 hours on each offence concurrently.