A A
B DCCC 34/2016 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 34 OF 2016
E E
-----------------
F HKSAR F
v
G G
LUO Jie
H H
-----------------
I I
J Before: Deputy District Judge Joseph To in Court J
Date: 30 May 2016 at 10:46 am
K K
Present: Mr Peter TSE, Counsel on Fiat, for HKSAR/Director of
L Public Prosecutions L
Mr YUEN Kwok-wah Bernard, instructed by Messrs. Ha &
M M
Ho, assigned by Director of Legal Aid
N Offences: [2], [4] and [5] Burglary （入屋犯法罪） N
O O
P P
------------------------------------------------------
Q REASONS FOR SENTENCE Q
------------------------------------------------------
R R
S S
T T
U U
CRT20/30.5.2016/ DCCC 34/2016/Sentence
V V
-2-
A A
B B
INTRODUCTION
C C
1. On 16 May 2016, the defendant was convicted, on his own
D D
plea, of three charges of burglary, preferred against him by the prosecution
E under section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (the second, E
fourth and fifth charges), whereupon the remaining two charges of
F F
burglary were ordered by consent to be left on court file marked not to be
G proceeded with without the leave of the court or that of the Court of Appeal G
(the first and the third charges).
H H
I FACTS I
J J
2. On the early morning of 8 October 2015, Yan Shiu-fai, lawful
K tenant of Flat 10, 1st Floor, Kin Tai House, Nos.89-113 Wan Hon Street, K
Kwun Tong, Kowloon, assured himself that the doors and windows of the
L L
flat were secured before he went to bed. The defendant climbed up –
M according to his post-arrest, cautioned statement – the water pipes on the M
outer wall of Kin Tai House, reached into Yan’s premises through a
N N
window to open the back door, and entered the premises to steal cash of
O about RMB ¥2,000 and HK$2,000, an Octopus Card, and a smartphone; in O
addition, he found on the common platform outside the flat a key capable
P P
st
of opening the back door of Flat 12 of 1 floor. The next morning, Yan
Q woke up only to find his place ransacked and that the following items had Q
gone missing: a smartphone (worth about $200), cash in the sum of RMB
R R
¥2,100, and a phone case containing one Worker Registration card, one
S Octopus Card with a stored value of HK$150 and cash in the sum of S
HK$1,200. A report was made to the police; upon investigation, they
T T
U U
CRT20/30.5.2016/ DCCC 34/2016/Sentence
V V
-3-
A A
B B
found on the wooden door a fingerprint impression belonging to the
C defendant. (Charge 2). C
D D
3. On the evening of 22 October 2015, a couple Mr and Mrs Ng,
E occupiers of Flat 12, 6th Floor, Kin Tai House, went to bed. In the early E
hours of 23 October 2015, a police officer saw the defendant climb up the
F F
water pipes on the external wall and disappear around a corner to the other
G side of the building. What transpired – according to the cautioned G
statement the defendant gave to the police subsequent to this arrest – was
H H
that he entered Mr and Mrs Ng’s flat and took away some HK$700. That
I morning, the police arrived at the flat for enquiry. Mr Ng discovered that I
HK$480 had been stolen from his wallet, and Mrs Ng found HK$300 had
J J
gone missing from hers. (Charge 4)
K K
4. Mr and Mrs Fan and their son lived in Flat 12, 7th Floor, Kin
L L
Tai House. They went to bed in the early morning of 23 October 2015.
M According to his cautioned statement, the defendant climbed into their flat M
and stole cash of around HK$1,500, a tablet computer, a jade pendant, and
N N
two smartphones. (Charge 5) Next, he climbed along the water pipes to
O reach the common platform, entered Flat 12 on the 1st floor using the key O
he had found earlier, and took a shower in that flat. When he emerged
P P
from Flat 12 by the front door, the police officer who had seen him scaling
Q the building that early morning intercepted and arrested him in the corridor. Q
In the defendant’s possession were found four smartphones, one tablet
R R
computer, a portable battery with a charging cord, a pair of earphones, a
S S
chain of three keys, one brown pendant with silver chain, one jade pendant,
T
one watch, cash in the sum of HK$2,826, one Octopus Card, some cards T
U U
CRT20/30.5.2016/ DCCC 34/2016/Sentence
V V
-4-
A A
B B
and some coupons. Under caution, he admitted having climbed up the
C water pipes to steal things. C
D D
5. Subsequently, Mr and Mrs Fan and their son confirmed that a
E tablet computer, two smartphones, a piece of jade, one Octopus Card with E
a stored value of HK$800 and cash of around HK$1,850 had gone missing
F F
from their premises. The total value of the stolen items was around
G HK$22,240 (Charge 5) G
H H
MITIGATION
I I
6. The defendant was born on the mainland in January 1996 and
J J
is now 20 years old. He came to live in Hong Kong in 2007 but has had no
K fixed abode here at the time of the offences. He has a total of five criminal K
conviction records, none of which are similar to his present convictions.
L L
According to his Antecedents Statement, the defendant has received
M education up to Form Five level and has worked as a kitchen hand at Café M
de Coral and as a transport worker. The defendant has no information as to
N N
the identity of his natural father; his mother committed suicide in 2010; his
O stepfather passed away in 2011; and his maternal grandmother, now 80, O
lives in the Jiangxi Province in Mainland China.
P P
Q 7. In his plea in mitigation, Mr Bernard Yuen for the defendant Q
submits that the defendant understands the recommendation of the
R R
Rehabilitation Officer who compiled the Training Centre Suitability
S S
Report at the request of the court, but the defendant wishes nevertheless to
T
be sent to prison instead. The defendant is very much concerned about the T
period of his pre-sentence detention which stands, as of the date of his
U U
CRT20/30.5.2016/ DCCC 34/2016/Sentence
V V
-5-
A A
B B
sentence, at some seven months. He explains, according to Mr Yuen, he
C committed the present offences because his aged grandmother is in need of C
finance to fight her stomach cancer. By that, it seems that the defendant
D D
wishes to be released from his incarceration as soon as possible, so that he
E could look after his grandmother in her moment of needs. In addition, the E
defendant wishes the court to consider that he has breached a suspended
F F
sentence in committing the subject offences, and presumably, therefore, he
G is of the view that he deserves to be sent to prison rather than a training G
centre.
H H
I 8. According to the Training Centre Suitability Report, the I
defendant has completed Form Three. Since his stepfather’s demise in
J J
2011, guardianship in respect of the defendant was granted to the Social
K Welfare Department. He has lived in various homes and hostels and has K
been recalled to a detention centre twice, the first time in April 2014 and
L L
the second time in March 2015. Prior to his remand in connection with the
M present case, he has lived with his peers in Tokwawan and Kwai Chung on M
an irregular basis. At the time of the offences, he was working as a
N N
labourer in a fruit stall in Yaumatei, making some $16,000 a month.
O O
9. Rehabilitation Officer Mr Poon Sze-chung notes that the
P P
defendant has been brought up in a broken family of which he was the only
Q child; his school performance in Hong Kong was all along poor; he joined Q
a triad society in August 2009 and has abused “ice” with his triad peers for
R R
slightly over a year; and subsequent to this release from a detention centre,
S S
his conduct during the supervision period was found less than satisfactory,
T
leading to his recall to the centre on two occasions. Having investigated in T
depth into the defendant’s upbringing, Mr Poon opines: “All in all,
U U
CRT20/30.5.2016/ DCCC 34/2016/Sentence
V V
-6-
A A
B B
defendant almost had no family care and parental supervision during his
C formative years. As revealed by his guardian Mr. LAU, defendant was C
loose in discipline and still under the guardianship of SWD until he was
D D
21.” Mr Poon is of the view that the defendant’s impulsiveness and his
E weak law-abiding concept are the chief source of his problems, and that a E
longer period of disciplinary training coupled with a period of statutory
F F
supervision upon discharge is beneficiary to his reformation. A training
G centre order is recommended. G
H H
CONSIDERATION
I I
10. The tariff sentence for the offence of burglary committed in
J J
residential premises is a term of imprisonment for three years.1 In the
K instant case, the defendant is not a person of previous good character. K
Although none of the offences he has committed in the past were offences
L L
of burglary, he has in the instant case burgled into more sets of residential
M premises than one in order to steal. The court notes that in March 2015, he M
was convicted of an offence of breach of condition of stay for which he
N N
was sentenced to seven-day imprisonment suspended for three years. In
O consequence, the offences with which this court is concerned were O
committed within the period of suspension of a prison sentence.
P P
Q 11. That said, the court notes that section 4(1) of the Training Q
Centres Ordinance, Cap 280, provides –
R R
“ Where a person is convicted of an offence punishable with
S imprisonment, then if on the day of his conviction he is in the opinion of the S
court not less than 14 but under 21 years of age, and the court is satisfied that
T it is in the interest of the community and that having regard to his character T
1
U HKSAR v Lau Pang [2004] 3 HKLRD 565 U
CRT20/30.5.2016/ DCCC 34/2016/Sentence
V V
-7-
A A
B and previous conduct, and to the circumstances of the offence, it is expedient B
for his reformation and for the prevention of crime that he should undergo a
C period of training in a training centre, the court may, in lieu of any other C
sentence, pass a sentence of detention in a training centre.” (emphasis
supplied)
D D
12. In HKSAR v Wong Tsz Hin2, the Court of Appeal said: “In
E E
view of the applicant’s young age and clear record and for the sake of the
F F
community, it is of importance that the applicant should be rehabilitated
G
and a long term imprisonment may not be the best answer for his G
rehabilitation.” (emphasis supplied) In the view of this court, when
H H
sentencing a young person, the issue of his rehabilitation must always be
I accorded due weight, and a prison term should be reserved as the very last I
option. In this regard, section 109A(1) of the Criminal Procedure
J J
Ordinance, Cap 221, provides –
K K
“ No court shall sentence a person of or over 16 and under 21 years of age
to imprisonment unless the court is of opinion that no other method of
L dealing with such person is appropriate; and for the purpose of determining L
whether any other method of dealing with any such person is appropriate the
M
court shall obtain and consider information about the circumstances, and M
shall take into account any information before the court which is relevant to
the character of such person and his physical and mental condition.”3
N N
13. It is generally acknowledged that detention at a training centre
O O
does not operate as a soft option to imprisonment. A detainee can be
P deprived of his liberty there for a total period of three years, and there is a P
statutory period of post-release supervision of three years, by which to
Q Q
ensure a long-term change in the detainee’s law-abiding stance and his
R successful return to the community. R
S S
T T
2
HKSAR v Wong Tsz Hin CACC 38/2012
3
This provision does not apply to cases involving excepted offences (see section 109A(1A) of the
U Criminal Procedure Ordinance, Cap 221). U
CRT20/30.5.2016/ DCCC 34/2016/Sentence
V V
-8-
A A
B B
14. In the instant case, having regard to the circumstances of the
C commission of the offences and to the defendant’s character and physical C
and mental condition, a Training Centre Order is the more appropriate
D D
sentence to be imposed on the defendant. In the words of Mr Poon, “a
E longer period of disciplinary training” is what the defendant requires for E
his rehabilitation. It will, in the court’s view, reduce the chances of his
F F
re-offending, and it would enhance the prospect of his becoming as a
G law-abiding member of the society; such an order would best serve the G
interest of the community.
H H
I CONCLUSION I
J J
15. For each of the three offences in the second, fourth and fifth
K charges of which he stands convicted, the defendant is sentenced to K
detention at a training centre, to be served concurrently. No order is made
L L
with respect to the suspended sentence in STCC 867/2015.
M M
N N
O O
( Joseph To )
P P
Deputy District Judge
Q Q
R R
S S
T T
U U
CRT20/30.5.2016/ DCCC 34/2016/Sentence
V V
A A
B DCCC 34/2016 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 34 OF 2016
E E
-----------------
F HKSAR F
v
G G
LUO Jie
H H
-----------------
I I
J Before: Deputy District Judge Joseph To in Court J
Date: 30 May 2016 at 10:46 am
K K
Present: Mr Peter TSE, Counsel on Fiat, for HKSAR/Director of
L Public Prosecutions L
Mr YUEN Kwok-wah Bernard, instructed by Messrs. Ha &
M M
Ho, assigned by Director of Legal Aid
N Offences: [2], [4] and [5] Burglary （入屋犯法罪） N
O O
P P
------------------------------------------------------
Q REASONS FOR SENTENCE Q
------------------------------------------------------
R R
S S
T T
U U
CRT20/30.5.2016/ DCCC 34/2016/Sentence
V V
-2-
A A
B B
INTRODUCTION
C C
1. On 16 May 2016, the defendant was convicted, on his own
D D
plea, of three charges of burglary, preferred against him by the prosecution
E under section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (the second, E
fourth and fifth charges), whereupon the remaining two charges of
F F
burglary were ordered by consent to be left on court file marked not to be
G proceeded with without the leave of the court or that of the Court of Appeal G
(the first and the third charges).
H H
I FACTS I
J J
2. On the early morning of 8 October 2015, Yan Shiu-fai, lawful
K tenant of Flat 10, 1st Floor, Kin Tai House, Nos.89-113 Wan Hon Street, K
Kwun Tong, Kowloon, assured himself that the doors and windows of the
L L
flat were secured before he went to bed. The defendant climbed up –
M according to his post-arrest, cautioned statement – the water pipes on the M
outer wall of Kin Tai House, reached into Yan’s premises through a
N N
window to open the back door, and entered the premises to steal cash of
O about RMB ¥2,000 and HK$2,000, an Octopus Card, and a smartphone; in O
addition, he found on the common platform outside the flat a key capable
P P
st
of opening the back door of Flat 12 of 1 floor. The next morning, Yan
Q woke up only to find his place ransacked and that the following items had Q
gone missing: a smartphone (worth about $200), cash in the sum of RMB
R R
¥2,100, and a phone case containing one Worker Registration card, one
S Octopus Card with a stored value of HK$150 and cash in the sum of S
HK$1,200. A report was made to the police; upon investigation, they
T T
U U
CRT20/30.5.2016/ DCCC 34/2016/Sentence
V V
-3-
A A
B B
found on the wooden door a fingerprint impression belonging to the
C defendant. (Charge 2). C
D D
3. On the evening of 22 October 2015, a couple Mr and Mrs Ng,
E occupiers of Flat 12, 6th Floor, Kin Tai House, went to bed. In the early E
hours of 23 October 2015, a police officer saw the defendant climb up the
F F
water pipes on the external wall and disappear around a corner to the other
G side of the building. What transpired – according to the cautioned G
statement the defendant gave to the police subsequent to this arrest – was
H H
that he entered Mr and Mrs Ng’s flat and took away some HK$700. That
I morning, the police arrived at the flat for enquiry. Mr Ng discovered that I
HK$480 had been stolen from his wallet, and Mrs Ng found HK$300 had
J J
gone missing from hers. (Charge 4)
K K
4. Mr and Mrs Fan and their son lived in Flat 12, 7th Floor, Kin
L L
Tai House. They went to bed in the early morning of 23 October 2015.
M According to his cautioned statement, the defendant climbed into their flat M
and stole cash of around HK$1,500, a tablet computer, a jade pendant, and
N N
two smartphones. (Charge 5) Next, he climbed along the water pipes to
O reach the common platform, entered Flat 12 on the 1st floor using the key O
he had found earlier, and took a shower in that flat. When he emerged
P P
from Flat 12 by the front door, the police officer who had seen him scaling
Q the building that early morning intercepted and arrested him in the corridor. Q
In the defendant’s possession were found four smartphones, one tablet
R R
computer, a portable battery with a charging cord, a pair of earphones, a
S S
chain of three keys, one brown pendant with silver chain, one jade pendant,
T
one watch, cash in the sum of HK$2,826, one Octopus Card, some cards T
U U
CRT20/30.5.2016/ DCCC 34/2016/Sentence
V V
-4-
A A
B B
and some coupons. Under caution, he admitted having climbed up the
C water pipes to steal things. C
D D
5. Subsequently, Mr and Mrs Fan and their son confirmed that a
E tablet computer, two smartphones, a piece of jade, one Octopus Card with E
a stored value of HK$800 and cash of around HK$1,850 had gone missing
F F
from their premises. The total value of the stolen items was around
G HK$22,240 (Charge 5) G
H H
MITIGATION
I I
6. The defendant was born on the mainland in January 1996 and
J J
is now 20 years old. He came to live in Hong Kong in 2007 but has had no
K fixed abode here at the time of the offences. He has a total of five criminal K
conviction records, none of which are similar to his present convictions.
L L
According to his Antecedents Statement, the defendant has received
M education up to Form Five level and has worked as a kitchen hand at Café M
de Coral and as a transport worker. The defendant has no information as to
N N
the identity of his natural father; his mother committed suicide in 2010; his
O stepfather passed away in 2011; and his maternal grandmother, now 80, O
lives in the Jiangxi Province in Mainland China.
P P
Q 7. In his plea in mitigation, Mr Bernard Yuen for the defendant Q
submits that the defendant understands the recommendation of the
R R
Rehabilitation Officer who compiled the Training Centre Suitability
S S
Report at the request of the court, but the defendant wishes nevertheless to
T
be sent to prison instead. The defendant is very much concerned about the T
period of his pre-sentence detention which stands, as of the date of his
U U
CRT20/30.5.2016/ DCCC 34/2016/Sentence
V V
-5-
A A
B B
sentence, at some seven months. He explains, according to Mr Yuen, he
C committed the present offences because his aged grandmother is in need of C
finance to fight her stomach cancer. By that, it seems that the defendant
D D
wishes to be released from his incarceration as soon as possible, so that he
E could look after his grandmother in her moment of needs. In addition, the E
defendant wishes the court to consider that he has breached a suspended
F F
sentence in committing the subject offences, and presumably, therefore, he
G is of the view that he deserves to be sent to prison rather than a training G
centre.
H H
I 8. According to the Training Centre Suitability Report, the I
defendant has completed Form Three. Since his stepfather’s demise in
J J
2011, guardianship in respect of the defendant was granted to the Social
K Welfare Department. He has lived in various homes and hostels and has K
been recalled to a detention centre twice, the first time in April 2014 and
L L
the second time in March 2015. Prior to his remand in connection with the
M present case, he has lived with his peers in Tokwawan and Kwai Chung on M
an irregular basis. At the time of the offences, he was working as a
N N
labourer in a fruit stall in Yaumatei, making some $16,000 a month.
O O
9. Rehabilitation Officer Mr Poon Sze-chung notes that the
P P
defendant has been brought up in a broken family of which he was the only
Q child; his school performance in Hong Kong was all along poor; he joined Q
a triad society in August 2009 and has abused “ice” with his triad peers for
R R
slightly over a year; and subsequent to this release from a detention centre,
S S
his conduct during the supervision period was found less than satisfactory,
T
leading to his recall to the centre on two occasions. Having investigated in T
depth into the defendant’s upbringing, Mr Poon opines: “All in all,
U U
CRT20/30.5.2016/ DCCC 34/2016/Sentence
V V
-6-
A A
B B
defendant almost had no family care and parental supervision during his
C formative years. As revealed by his guardian Mr. LAU, defendant was C
loose in discipline and still under the guardianship of SWD until he was
D D
21.” Mr Poon is of the view that the defendant’s impulsiveness and his
E weak law-abiding concept are the chief source of his problems, and that a E
longer period of disciplinary training coupled with a period of statutory
F F
supervision upon discharge is beneficiary to his reformation. A training
G centre order is recommended. G
H H
CONSIDERATION
I I
10. The tariff sentence for the offence of burglary committed in
J J
residential premises is a term of imprisonment for three years.1 In the
K instant case, the defendant is not a person of previous good character. K
Although none of the offences he has committed in the past were offences
L L
of burglary, he has in the instant case burgled into more sets of residential
M premises than one in order to steal. The court notes that in March 2015, he M
was convicted of an offence of breach of condition of stay for which he
N N
was sentenced to seven-day imprisonment suspended for three years. In
O consequence, the offences with which this court is concerned were O
committed within the period of suspension of a prison sentence.
P P
Q 11. That said, the court notes that section 4(1) of the Training Q
Centres Ordinance, Cap 280, provides –
R R
“ Where a person is convicted of an offence punishable with
S imprisonment, then if on the day of his conviction he is in the opinion of the S
court not less than 14 but under 21 years of age, and the court is satisfied that
T it is in the interest of the community and that having regard to his character T
1
U HKSAR v Lau Pang [2004] 3 HKLRD 565 U
CRT20/30.5.2016/ DCCC 34/2016/Sentence
V V
-7-
A A
B and previous conduct, and to the circumstances of the offence, it is expedient B
for his reformation and for the prevention of crime that he should undergo a
C period of training in a training centre, the court may, in lieu of any other C
sentence, pass a sentence of detention in a training centre.” (emphasis
supplied)
D D
12. In HKSAR v Wong Tsz Hin2, the Court of Appeal said: “In
E E
view of the applicant’s young age and clear record and for the sake of the
F F
community, it is of importance that the applicant should be rehabilitated
G
and a long term imprisonment may not be the best answer for his G
rehabilitation.” (emphasis supplied) In the view of this court, when
H H
sentencing a young person, the issue of his rehabilitation must always be
I accorded due weight, and a prison term should be reserved as the very last I
option. In this regard, section 109A(1) of the Criminal Procedure
J J
Ordinance, Cap 221, provides –
K K
“ No court shall sentence a person of or over 16 and under 21 years of age
to imprisonment unless the court is of opinion that no other method of
L dealing with such person is appropriate; and for the purpose of determining L
whether any other method of dealing with any such person is appropriate the
M
court shall obtain and consider information about the circumstances, and M
shall take into account any information before the court which is relevant to
the character of such person and his physical and mental condition.”3
N N
13. It is generally acknowledged that detention at a training centre
O O
does not operate as a soft option to imprisonment. A detainee can be
P deprived of his liberty there for a total period of three years, and there is a P
statutory period of post-release supervision of three years, by which to
Q Q
ensure a long-term change in the detainee’s law-abiding stance and his
R successful return to the community. R
S S
T T
2
HKSAR v Wong Tsz Hin CACC 38/2012
3
This provision does not apply to cases involving excepted offences (see section 109A(1A) of the
U Criminal Procedure Ordinance, Cap 221). U
CRT20/30.5.2016/ DCCC 34/2016/Sentence
V V
-8-
A A
B B
14. In the instant case, having regard to the circumstances of the
C commission of the offences and to the defendant’s character and physical C
and mental condition, a Training Centre Order is the more appropriate
D D
sentence to be imposed on the defendant. In the words of Mr Poon, “a
E longer period of disciplinary training” is what the defendant requires for E
his rehabilitation. It will, in the court’s view, reduce the chances of his
F F
re-offending, and it would enhance the prospect of his becoming as a
G law-abiding member of the society; such an order would best serve the G
interest of the community.
H H
I CONCLUSION I
J J
15. For each of the three offences in the second, fourth and fifth
K charges of which he stands convicted, the defendant is sentenced to K
detention at a training centre, to be served concurrently. No order is made
L L
with respect to the suspended sentence in STCC 867/2015.
M M
N N
O O
( Joseph To )
P P
Deputy District Judge
Q Q
R R
S S
T T
U U
CRT20/30.5.2016/ DCCC 34/2016/Sentence
V V