HKSAR v. Eagle Zachary E and Others
Read the full judgment text of DCCC 939/2014 on BabelCite. This District Court judgment.
1. D1, D2 and D3 plead guilty to the following 7 charges of burglaries in shops during their closing hours of business in June 2014:
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DCCC 939/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 939 OF 2014 -----------------------------------
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---------------------------- Reasons for Sentence ---------------------------- Charges and facts 1.D1, D2 and D3 plead guilty to the following 7 charges of burglaries in shops during their closing hours of business in June 2014:
2.On 6th August 2014, D1 and D2 were arrested. On 13th August 2014, D3 was arrested. They admitted the offences when interviewed by the police under caution. Mitigation D1 3.At the time of the offences, D1 was 17 years and 8 months of age. At the time of sentence, he is 18 years and 5 months of age. His natural father, a Filipino, had run off in the course of cohabitation with his mother, who later married a Britisher and gave birth to his step-sister. His mother, who worked in a supermarket, always had disputes with his step-father, who worked in a logistic company. Their parental guidance was loose and ineffective. 4.He quitted school without completing Grade 9 in an international school (or the equivalent of F. 3 in a local school). He worked as a waiter on hourly rates for a month and became jobless since then. He mixed up with playful and delinquent peers. 5.A report, returned to this Court on 13 March 2015, was made to assess his suitability for detention in a Training Centre or a Detention Centre. Since F.1 in 2010, he began to mix with undesirable peers and loiter in public parks and amusement game centres. According to his own account, which cannot be verified by CRB, he received a police superintendent’s caution for theft in late June 2011. Since July 2011, he no longer attended school. In September 2012, he resumed school but performed poorly. He had records of smoking cigarettes and drinking alcohol inside school. He frequently broke school rules and had to withdraw school as suggested by the school in April 2014. He then worked as a waiter for a short while and became jobless. He spent more time in fun-seeking activities in snooker and karaoke lounges. As he soon ran out of money, he committed the present 7 burglaries alone or with friend(s) between 1 and 24 June 2014. 6.Prior to the present 7 burglaries, he had on between 13 and 27 June 2014 committed 3 thefts which landed him in a Detention Centre on 14 July 2014. He was released after 5 ½ months later, on 23 December 2014. 7.I ordered for a Training Centre and Detention Centre Report (“the Report”). From the information available and after a general assessment of his behavior and attitude whilst on remand, the intake officer considered him more suitable for detention in a Detention Centre. 8.His solicitor, Mr. Morley, asks me to place him in a Detention Centre. As there was no reason stated in the Report as to why the intake officer considered him more suitable for detention in a Detention Centre,I ordered a Further Training Centre and Detention Centre Report (“the Further Report”) to focus on the reason. According to the Further Report:
D2 9.At the time of the present 6 offences, D2 was 18 years and 1 month of age. At the time of sentence, he is 18 years and 10 months of age. He did not complete F. 3. Nor did he work afterwards. He was found in possession of an offensive weapon, ie 2 daggers, in a public place on 21 March 2014. He was then 17 years and 10 months of age. He was sentenced to 14 days’ imprisonment on 9 December 2014. D3 10.At the time of the offence, D3 was 15 years and 10 months of age. At the time of sentence, he is 16 years and 7 months of age. He suffers mild intellectual disability. His parents had separated for long. His father lived apart and assumed no role in his care. His mother, a probationary subject later sentenced to the Drug Addiction Treatment Centre, was said to have been rather irresponsible in child care. She died 2 months ago. He had been a known case in the Social Welfare Department and a subject of care and protection order for 18 months between July 2010 and February 2012. 11.He was cautioned by a police superintendent for theft twice, once on 29 December 2009 and the other on 19 February 2014. The probation officer found him little motivated for either work or study. His paternal uncle, a bartender in a Thai restaurant, had sought a trainee placement for him in a Spanish restaurant under the same boss in October 2014. However, he quitted after 1 week as he had to report to the police station on alternate days as a bail condition at the working time. He did a part-time job for 2 weekends and became jobless afterwards. 12.He last lived with, and received care, from his paternal grandparents, mainly his paternal grandfather. They are in their sixties and work full time as manual laborers. 13.The probation officer recommended probation for 18 months with special conditions. He would benefit from external guidance for work or study monitored through probation. Sentencing guidelines 14.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal suggested 2 ½ years as the starting point for non-domestic premises for a first offender of full age. Sentencing these defendants D1 15.He had no sense of direction in his life ever since 2010, 4 years ago. He had no effective parental guidance. He had neither interest in academic pursuit nor working in a stable job. Whilst it is said that the Detention Centre may help him develop the correct concept of law and discipline, I do not find it sufficiently conducive to addressing his lack of direction in life, a major issue with which he has so far failed to grapple but will enlarge as time goes by. He is now 18 years old. It is time he learned a vocation and made sense of his adulthood. I find the Training Centre programme more suitable to him for his reformation. Such placement will be to the best interest of him and the community. Next to this reformatory element and outside the purview of the intake officer is the general deterrence which I cannot overlook as the sentencing judge. A Detention Centre will send a weak message to the general public who may thereby belittle the gravity of multiple burglaries committed in joint enterprise. In the premises, I find a Training Centre order capable of finely balancing all concerns. D2 16.As he had served a prison term before, institutional options are out of the question. I take 2 ½ years as the starting point for each of the 6 burglaries he committed with friend(s) between 1 and 24 June 2014. One-third off for his plea of guilty, each warrants 20 months’ imprisonment. Those were separate incidents that ought to call for consecutive sentences. However, upon a totality adjustment, I order that 1 month of each sentence be consecutive to other sentences. The overall sentence is 25 months. D3 17.I find probation to be in the best interest of him and the community. I put him on probation for 18 months with the special conditions as prescribed in the probation report in respect of the 6th Charge.
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