HKSAR v. Kong Ka Yu, Kenneth

DCCC735/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 735 OF 2012

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Reasons for Sentence

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1.The defendant has pleaded guilty to a charge of burglary.

2.The particulars of the offence are that on 19 June 2012, he entered Room 2005 on the 20th floor of Block C, Queen’s Garden, No.9 Old Peak Road, and stole a brassiere.

3.The facts admitted by the defendant disclose that the unit is a residential building with two units on each floor.  The defendant was employed at the premises as one of a number of security guards.

4.At about 10 past 8 on the evening of 19 June, the victim in this case, a lady, returned to her unit after work.  She discovered that the light in her bedroom had been switched on and she heard noises from within. 

5.She was concerned about her safety and contacted the security office and waited for a security guard to come to her unit.  They went into the bedroom together and saw the defendant inside the bedroom.

6.The defendant fled from the unit via the rear entrance to the kitchen.  The defendant was chased but managed to get away.

7.The victim discovered that a cabinet inside her bedroom was opened and a brassiere was missing.  A report was made to the police.

8.When the police arrived, the defendant was located and he immediately admitted that he had obtained the spare key, which was kept in the management office, and had entered the unit.

9.He admitted that he had attempted to steal the brassiere and he had placed it inside the cloakroom when the victim had returned.

10.The defendant was subsequently interviewed under caution and admitted that he had worked as a security guard at the premises.  He said he had obtained an access card and entered the premises at about 1940 hours, and he entered the unit using a spare key and he admitted that he had then run away.  He said he knew that the victim was single and took the spare key in order to enter the premises.

11.The defendant has a clear record.

12.He is 23 years of age.  He is educated to Form 5 standard but later attained a higher diploma in business management from HKU Space.

13.He had been working as a security guard at the premises since 2011 and he has obviously lost his job since his arrest.

14.I am told that although he was employed as a security guard, they were required to carry out a number of personal services for the residents of the units.  For instance, they helped residents to take in luggage, assisted in parties and needed to watch constantly for strangers within the estate.

15.I am told that he had seen the victim on a few occasions and had found her attractive.

16.At the relevant time, he knew that the victim was not going to be in the flat.  This is because some work had been carried out at the flat and a chit had to be signed to indicate that the work was satisfactory and this had not been done, so when he went to the flat, he had reason to believe that she was not going to be there.

17.I am told that - and I accept that - the defendant found the work at these premises somewhat stressful.  He was the youngest of the guards employed.  The other guards were considerably older and he was the only one able to speak English.  Most of the residents were English-speaking and so he was delegated to deal with most of the complaints that were made by the residents from time to time.

18.I am told that he was so conscientious in this task that he took with him his Chinese-English dictionary to make sure that he understood the complaints properly and that they were dealt with properly.  It was this aspect of his work that caused him stress.

19.I have read a number of reports on the defendant - two psychological reports and a report prepared by a probation officer.  The defendant is the only child of his parents.  His father is 57 and is a retired police officer, and his mother, 49, is a school bus attendant.

20.I have been told that his father was extremely strict with him when he was being brought up.  He had to make sure that he complied with any instructions as to what time he should return home and he was very restricted in where he could go.

21.According to the probation officer, she describes his childhood as being uneventful.  The officer stated that there were sufficient parental guidance and supervision and he behaved well at school.  He had a harmonious relationship with his parents and made a financial contribution to the family.

22.The defendant comes across as a somewhat lonely person.  He does not have many friends and he does not go out the spend most of his time on his own.

23.The psychological reports refer to the fact that he is sexually inexperienced and, after a private psychological report was obtained, he was encouraged to go to the Caritas Community Support Project on the development of sexual health for assistance.  The root of this problem seems to be the lack of any sex education whatsoever, either from school or from parents.

24.I am told that, according to the psychologist, he has pent-up work stress and inadequate coping skills and he indulged in online pornography.  This was identified as one of the key strategies in relieving himself and he developed a strong sexual preference for the brassiere.  

25.Some months before the event, he had purchased a brassiere and used to hold it during masturbation.  The commission of the offence was related, according to the psychologist, to a number of factors - such as a lack of adaptive stress-coping strategies, the indulgence in pornography, the subsequent development of strong sexual preference for the brassiere - and it is stated that he acts out his fantasy when the opportunity comes along.  The risk of committing further offences is said to be low.

26.A number of letters were placed before the court.

27.One, from the defendant himself, in which he apologises for the shame that he has brought upon his family.  He said that his father was a police constable but retired because of health problems, and his mother has suffered from severe depression.  He describes his father as being a very strict parent and he was on a tight schedule and he had to account for all his movements, and apparently his father was in the habit of waking him up at night when he had come home from shift work to tell him what he had been doing during the day.

28.A letter from the parents confirms what the son had said.  The father, in particular, feels responsible for much of the defendant’s current behaviour.  He said that he recognises that he had brought him up the wrong way and was far too strict with him.  Both his parents have attended court on the occasions of his appearances before the court and they are obviously very concerned about him.

29.A letter from the Caritas Community Support Project says that the defendant has been making good progress there and there was also a letter from this former supervisor when he worked as a security guard and, notwithstanding what happened, he is obviously concerned about the defendant and describes him as being quite timid with people.

30.From what has been said in mitigation and from the background reports and the psychological reports, it is clear that this offence is very much out of character.  The defendant is described as being sexually very immature and although he has had two girlfriends, there was no intimacy with either of them.

31.Unlike most burglaries, this offence was not motivated by greed.

32.I accept that, at the relevant time, the defendant was feeling stressed and the offence was out of character. 

33.The fact that he was a security guard, however, is an aggravating feature.

34.I accept that, at the relevant time, he thought that the victim would not be at the premises and he had reason for that belief.

35.I accept that he now bitterly regrets this impulsive action and that his parents are devastated by his predicament. 

36.In all the circumstances, I have decided to take a starting point of 18 months’ imprisonment and reduce that to 12 months to reflect his guilty plea.