HKSAR v. Yem Wai Man and Another

DCCC 977/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 977 OF 2012

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REASONS FOR SENTENCE

D1 and D2 are jointly charged with 2 offences of "Burglary" (Charges 1 and 2). They each pleaded guilty to both charges. The burgled premises are the tuck shops of 2 primary schools.

Summary of Facts

Charge 1

2.Madam LEUNG (PW1) is a staff member of the tuck shop located at Lok Sin Tong Leung Kau Kui Primary School ("School A") in Tin Shui Wai .  She went off duty at 4:00 pm on 23 August 2012.

3.PW1 returned to the school at 10:40 am on 27 August and discovered the tuck shop having been burgled.  The cashier was prized open and cash in the sum of $800 was found missing.  A screwdriver not belonging to the tuck shop was left beside a drawer.  The Police was alerted.

Charge 2

4.Mr. LO (PW2) is a staff member of the tuck shop located at Y.L.P.M.S. Alumni Association Ying Yip Primary School ("School B") in Tin Shui Wai.  He last checked the tuck shop at 2:00 pm on 17 August 2012.

5.PW2 returned to the school at 10:00 am on 28 August and discovered the tuck shop having been burgled.  Cash in the sum of $509.50 was found missing.

Police Investigation

6.The CCTVs installed at both schools and in the vicinity of each school captured 2 males appearing in the vicinity of both schools.  D1 and D2 were arrested on 28 August 2012.

7.In relation to Charge 1, D2 admitted under caution that on 26 August 2012, D1 suggested to burgle some schools.  D1 gave him a recycle bag, a screwdriver and gloves.  D1 broke into School A by climbing through a window.  D1 opened the door and let D2 in.  D2 prized open the drawers in the tuck shop and stole some money.  They then went to a convenience store to exchange the coins for banknotes and shared the money.  D2 threw away the gloves but left the screwdriver at School A.  In relation to Charge 2, D2 admitted that he committed the offence together with D1.  They removed the wooden screen of the ventilation window at School B to gain entry.  They stole money from the cashier in the tuck shop and left.

8.In relation to Charge 1, D1 admitted that he and D2 burgled School A around 2:00 am on 26 August 2012.  D1 climbed into the school through a ventilation window.  He then opened the door for D2.  They prized open the cashier and stole some money.  They shared the stolen sum.  In relation to Charge 2, D1 admitted that they climbed into School B through the ventilation window of a door.  They stole some money and shared the sum.  They both wore gloves when committing both offences.

Mitigation & Sentence

9.D1 is now 19 and has 4 criminal records, 2 of which are Robbery and Theft. He committed those 2 offences when he was only 14 and was put on probation. In October 2012, he was put on probation again for "simple possession". Charges 1 and 2 predate his current Probation Order. D1 is only educated up to F.2 level. He hardly had any meaningful employment after leaving school. He is found not suitable for Training Centre since he is a drug dependant.

10.D2 is now 20 and has 2 criminal records involving Theft, Handling Stolen Goods and Robbery. He committed those offences when he was 15 and was put on probation. Due to continuous breaches, his Probation Order kept being extended until February 2010, when he was sentenced to Rehabilitation Centre. He was released in September 2010. D2 is also educated up to F.2 level. He was a kitchen worker during his Phase II training in Rehabilitation Centre and the post-release supervision period. He is found suitable for Training Centre.

11.Defence lawyer Mr. LOU submitted that both D1 and D2 are still young. They were cooperative with the Police after their arrest. The total value of cash stolen is very low, about $1,300. Letters written by both defendants were placed before me; their contents are duly noted.

12.The records of both defendants are disappointing. They started committing crimes at their early teenage years. More than adequate opportunities were given to them for rehabilitation and to reform, but they did not treasure those opportunities. It is plain that they have not learned their lessons. In the present case, I consider immediate imprisonment to be the only appropriate sentence for both of them. Notwithstanding the recommendation in his Training Centre Report, I do not find a Training Centre Order to be an effective and meaningful punishment for D2. He needs to be deterred by a real prison term.

13.For each charge, I will adopt the normal starting point of 2.5 years' imprisonment for non-domestic burglary. A one-third discount is given for the guilty plea, reducing the sentence to 20 months. Apart from this, I see no other mitigating factors which warrant any further reduction. Hence, the sentence I impose for each defendant for each charge is 20 months' imprisonment.

14.D1 and D2 committed both offences more or less at the same time. Having considered the totality principle, I order their sentences for Charges 1 and 2 to run concurrently. In other words, the total prison term for each defendant is 20 months.