HKSAR v. Moran Jake Alexander

DCCC930 & 940/2011 (CONS)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 930 AND 940 OF 2011 (CONS)

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Reasons for Sentence

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1.The 2nd defendant has pleaded guilty to one count, the 1st charge of burglary. 

2.The particulars of the offence are that he and the 1st defendant broke into a commercial premises early in the morning of 12 July this year.  They were seen leaving the premises and subsequently stopped by police officers outside the building.  Both were carrying a carton box, and upon a search by the police officers, the items that they have both pleaded guilty to stealing include computer monitors, computers, digital cameras, laser pens, USB devices, hard-disks, cigarettes and such, the value of which is significant.

3.Both defendants pleaded guilty before me. 

4.The 2nd defendant is 20 years old and until now had a clear record.  However, from what I was told on the last occasion, in Hong Kong he no longer has a stable family life and has been living with an uncle and an aunt.  In fact, he does not seem to have had much direction in his life since dropping out of school in Sydney last summer, July 2010. 

5.Because of his young age and because of his plea and having heard mitigation, I called for various reports, even though the defendant was over 19.  I do not intend to repeat the content of the reports. The reports reflect accurately his background and reflect what I was told in mitigation.  

6.I, after a request by defence counsel, also called for a Community Service Order. I have that today.  It also is in great detail but ultimately the probation officer is not prepared to consider a Community Service Order as a recommendation and one reason given is due to the gravity of this case and the actual involvement in this criminal act.

7.I had said on the last occasion that a Community Service Order would be unlikely and I have considered that it is not unheard of and have seen a decision of a fellow District Court judge.  However, I distinguish that case to this one here.  He gave a Community Service Order to one of three defendants in that case, which involved a burglary that was described as a petty burglary where there were some exceptional mitigating factors. 

8.In this case, where the 2nd defendant is concerned, Community Service Order is not recommended and in my view, this burglary is not a petty burglary.  This is not a theft of some wine as in that previous case but items of value, nor do I see much change or turnaround in this defendant since this offence or his arrest, like the defendant in the previous case. 

9.Moreover, the 2nd defendant through no fault of his own does not have concrete family support in Hong Kong.  His mother has left Hong Kong with his stepfather and lives in the Middle East.  He has been living with an uncle and an aunt, as I have said, but they, although very supportive, do not have any idea of the defendant’s work or his social activities outside of their home.

10.The report tends to suggest the defendant is carefree in his attitude, and I quote,

“During the interview, the defendant was carefree in his attitude.  He was also passive and reserved in disclosing his misdeeds.  He attributed his wrongdoing to his greediness, recklessness and drunkenness without considering the legal consequences.  However, little sense of remorse was noted from him and he just entreated a lenient sentence from the court.  In discussing his future, he stated that he planned to study business in the Chinese University of Hong Kong after his discharge.”

11.This report ultimately recommends detention centre as suitable.  The defendant clearly did not do badly when he was at school in Hong Kong, so it is very possible that he can go on to achieve an academic qualification. 

12.However, today I have to balance the rehabilitative approach with the seriousness of this offence and the nature of the offence in conjunction with all the mitigation and background before me.  Ultimately, I have decided that a Community Service Order is not an appropriate sentence.  However, I am in agreement with the report that a period of disciplinary training coupled with statutory supervision would be of benefit. 

13.Ultimately, I will follow the report’s recommendation. The 2nd defendant for Charge 1 will serve a Detention Centre Order.