DCCC94/2022 HKSAR v. CHOW CHEUK WANG KENWARD - LawHero
DCCC94/2022
區域法院（刑事）Deputy District Judge Bernard Chung19/7/2022[2022] HKDC 754
DCCC94/2022
A A
B B
DCCC 94/2022
C [2022] HKDC 754 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 94 OF 2022
F F
G --------------------------------------- G
HKSAR
H H
v
I CHOW CHEUK WANG KENWARD I
---------------------------------------
J J
K Before: Deputy District Judge Bernard Chung in Court K
Date: 20 July 2022
L L
Present: Mr Yeung Shek Nung, Counsel on fiat, for HKSAR
M Mr Kwan Tong Lee, instructed by Robertsons, assigned by the M
Director of Legal Aid, for the defendant
N N
Offence: [1] - [3] Burglary (入屋犯法罪)
O O
[4] Possession of offensive weapon in a public place (在公眾
P 地方管有攻擊性武器) P
Q Q
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R REASONS FOR SENTENCE R
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S S
T T
U U
V V
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A A
B B
Introduction
C C
1. The defendant (“D”) is convicted on his own plea of 3 charges
D D
of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance,
E Cap 210 and 1 charge of Possession of Offensive Weapon in a Public Place, E
contrary to section 33(1) and (2) of the Public Order Ordinance, Cap 245.
F F
Particulars of Offence for Charges 1 to 3 stated that on 24 October 2021 D
G entered as a trespasser 3 separate shops insider the first floor of Kingswood G
Richly Plaza, Kingswood Villa in Tin Shui Wai and stole therein. Charge
H H
1 involved HK$20, Charge 2 involved HK$320 and Charge 3 involved Euro
I 100 and RMB 1. The Particulars of Offence for Charge 4 stated that on the I
same date and at the same location, D without lawful authority or
J J
reasonable excuse, had with him an offensive weapon, namely 1 knife.
K K
Facts of Case
L L
M 2. All 4 charges arose from the same incident. The Summary of M
Facts admitted by D revealed that at the time material to the case the
N N
shopping mall concerned, i.e., the Kingswood Richly Plaza in Tin Shui Wai
O (“the Mall”), was open to the public 24 hours a day. Security measures O
included security guards and CCTV. The shops inside the Mall relevant to
P P
this case only used curtains to cover the entrances without other security
Q measures. Q
R R
3. At around 0211 hours on 24 October 2021 a security guard of
S the Mall spotted D inside the Mall acting suspiciously. A report was made S
to the police. At around 0229 hours the police party responding to the call
T T
stopped D on the first floor inside the Mall. Upon search, D was found to
U U
V V
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A A
B B
have a fruit knife (8-inches long) at the area between his right shoe and sock;
C cash HK$320 in his right front trousers’ pocket; cash EURO 100, RMB 1 C
and HK$20 inside his right rear trousers’ pocket and that he was wearing a
D D
glove at his left hand with the right-hand glove found in the pocket of his
E jacket. E
F F
4. D was arrested for “possession of offensive weapon”. Under
G caution, D said “Ah sir, I have the knife with me for self-protection and G
intimating others, I put it inside my shoe so that it is convenient for me to
H H
use it anytime.”
I I
5. When being enquired about the money he had on him, he
J J
admitted to have stolen them inside 3 shops in the Mall and voluntarily took
K the police to the 3 shops as particularized in Charges 1 to 3, admitting under K
caution at each shop of stealing the relevant money therein.
L L
M 6. Later in a Video-Recorded Interview, D admitted under M
caution that he went inside the Mall alone to steal therein. He further
N N
admitted that he only wore a glove on his left hand in order to avoid leaving
O any fingerprints. As to the fruit knife, he admitted that he was afraid that O
he would be bullied so he kept it for self-protection but had never used it
P P
before.
Q Q
Background of D
R R
S 7. According to the Background Report and Training Centre S
Report, D is 18 years old, born on 5 July 2003 in Hong Kong. His parents
T T
divorced in 2017. He is single and resided with his mother and a younger
U U
V V
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A A
B B
brother in a public housing unit in Tin Shui Wai. He studied up to Form 1.
C At one stage he worked in the construction company owned by his father, C
but only for a short time. He also claimed to have worked as a chef. He
D D
was diagnosed with ADHD, oppositional defiant disorder and dyslexia
E when he was about 7 years old. He was put on medication until July 2019 E
when his Attending Doctor recommended suspension of medication as his
F F
situation had improved.
G G
8. During D’s childhood his parents did not provide sufficient
H H
care and guidance to him. He had all along been an academic underachiever
I since his lower primaries. His wayward behaviour also began to surface I
when he was still in primary education. He first came into trouble with the
J J
law in 2015. For an allegation of Common Assault he was cautioned under
K the Police Superintendent’s Discretion Scheme. He was only 11 at the time. K
Since then he became involved in triad and dangerous drug activities, and
L L
his behaviour continued to deteriorate. He is only 18 now but at such a
M young age he already has an appalling criminal record, with a total of 10 M
previous convictions, including 3 for Burglary and 1 for Possession of
N N
offensive weapon. He had been sent to Reformatory School but he did not
O seem to have benefited by the training there. His last conviction came on O
14 June 2019 when he was sentenced to Training Centre for a total of 7
P P
convictions. I understand that he was last discharged from the Training
Q Centre on 23 June 2021, about 4 months prior to the commission of the Q
present offences.
R R
S S
T T
U U
V V
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A A
B B
Mitigation
C C
9. In mitigation, Mr Kwan who represented D, submitted D is
D D
entitled to the usual 1/3 discount for his early guilty plea. For Charges 1 to
E 3, Mr Kwan urged the court to pass concurrent sentences. He submitted E
that in the light of the Reports, imprisonment seems to be the only option
F F
open. He urged the court to treat the case as opportunistic Burglary and
G consider totality principle in passing sentence on D. G
H H
Assessment of Sentence
I I
10. Given the young age of D, and in consideration of the
J J
provision in section 109A of Cap 221, I called for Training Centre and
K Background Reports to provide more information to assist me in assessing K
the appropriate sentences to be imposed on D.
L L
M 11. D has been sent to Training Centre once but does not seem to M
have benefited from the training provided therein. During the current
N N
remand period, he has broken the institutional rules repeatedly for a total of
O 10 times between November 2021 and June 2022. O
P P
12. So far as Charge 4 is concerned, section 33(2)(c), which is
Q applicable to D, does not include Training Centre Order as an option. Q
Detention Centre Order is not an appropriate option either given the
R R
seriousness of the offences and Rehabilitation Centre Order is not
S applicable under section 4(2) of Cap 567. The only sentencing option open S
for this offence is imprisonment of not more than 3 years. This offence is
T T
an excepted offence, so that no suspension of sentence could be considered.
U U
V V
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A A
B B
C 13. It is always difficult for the court to send a young man like D C
to prison, but it seems to me that this is the only option open for the present
D D
case.
E E
14. It is well established that the starting point for Burglary of non-
F F
domestic premises is 2 years and 6 months. In HKSAR v Cheng Wai Kai
G (unrep CACC 338/2007), the CA listed a number of factors which can be G
considered to be aggravating circumstances, including the offender has
H H
previous conviction, particularly of a similar nature and the commission of
I multiple offences. Although youth can be regarded as a mitigating factor I
(HKSAR v Tsang Chun Yin [2018] 1 HKLRD 1128), D, despite the fact that
J J
he has yet to reach the age of 19, has already had 3 convictions for Burglary.
K The present case involved the commission of 3 similar offences on a single K
occasion.
L L
M 15. D went to the Mall in late night with an intention to steal M
therein, and equipped himself with the gloves, which he wore on one hand
N N
to avoid leaving fingerprints. I do not accept that it was an opportunistic
O Burglary as suggested by Mr Kwan. O
P P
16. Having taken all relevant matters into consideration, I adopt
Q 2 ½ years as the starting point for Charges 1 to 3, and 12 months for Q
Charge 4. D is entitled to 1/3 discount for his timely guilty plea. There is
R R
no other mitigating factor warranting further discount. For Charges 1 to 3,
S D is sentenced to 20 months each. The 3 offences were committed on the S
same occasion. I order sentences for all 3 charges to run concurrently. For
T T
Charge 4, D is sentenced to 8 months’ imprisonment. This offence is
U U
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A A
B B
separate and distinct from the other charges. On the totality principle, I
C order 4 months to run consecutive to the sentence in Charge 1. C
D D
17. For the 4 offences D is sentenced to a total of 24 months’
E imprisonment. E
F F
G G
H H
I ( Bernard Chung ) I
Deputy District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 94/2022
C [2022] HKDC 754 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 94 OF 2022
F F
G --------------------------------------- G
HKSAR
H H
v
I CHOW CHEUK WANG KENWARD I
---------------------------------------
J J
K Before: Deputy District Judge Bernard Chung in Court K
Date: 20 July 2022
L L
Present: Mr Yeung Shek Nung, Counsel on fiat, for HKSAR
M Mr Kwan Tong Lee, instructed by Robertsons, assigned by the M
Director of Legal Aid, for the defendant
N N
Offence: [1] - [3] Burglary (入屋犯法罪)
O O
[4] Possession of offensive weapon in a public place (在公眾
P 地方管有攻擊性武器) P
Q Q
----------------------------------------
R REASONS FOR SENTENCE R
----------------------------------------
S S
T T
U U
V V
-2-
A A
B B
Introduction
C C
1. The defendant (“D”) is convicted on his own plea of 3 charges
D D
of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance,
E Cap 210 and 1 charge of Possession of Offensive Weapon in a Public Place, E
contrary to section 33(1) and (2) of the Public Order Ordinance, Cap 245.
F F
Particulars of Offence for Charges 1 to 3 stated that on 24 October 2021 D
G entered as a trespasser 3 separate shops insider the first floor of Kingswood G
Richly Plaza, Kingswood Villa in Tin Shui Wai and stole therein. Charge
H H
1 involved HK$20, Charge 2 involved HK$320 and Charge 3 involved Euro
I 100 and RMB 1. The Particulars of Offence for Charge 4 stated that on the I
same date and at the same location, D without lawful authority or
J J
reasonable excuse, had with him an offensive weapon, namely 1 knife.
K K
Facts of Case
L L
M 2. All 4 charges arose from the same incident. The Summary of M
Facts admitted by D revealed that at the time material to the case the
N N
shopping mall concerned, i.e., the Kingswood Richly Plaza in Tin Shui Wai
O (“the Mall”), was open to the public 24 hours a day. Security measures O
included security guards and CCTV. The shops inside the Mall relevant to
P P
this case only used curtains to cover the entrances without other security
Q measures. Q
R R
3. At around 0211 hours on 24 October 2021 a security guard of
S the Mall spotted D inside the Mall acting suspiciously. A report was made S
to the police. At around 0229 hours the police party responding to the call
T T
stopped D on the first floor inside the Mall. Upon search, D was found to
U U
V V
-3-
A A
B B
have a fruit knife (8-inches long) at the area between his right shoe and sock;
C cash HK$320 in his right front trousers’ pocket; cash EURO 100, RMB 1 C
and HK$20 inside his right rear trousers’ pocket and that he was wearing a
D D
glove at his left hand with the right-hand glove found in the pocket of his
E jacket. E
F F
4. D was arrested for “possession of offensive weapon”. Under
G caution, D said “Ah sir, I have the knife with me for self-protection and G
intimating others, I put it inside my shoe so that it is convenient for me to
H H
use it anytime.”
I I
5. When being enquired about the money he had on him, he
J J
admitted to have stolen them inside 3 shops in the Mall and voluntarily took
K the police to the 3 shops as particularized in Charges 1 to 3, admitting under K
caution at each shop of stealing the relevant money therein.
L L
M 6. Later in a Video-Recorded Interview, D admitted under M
caution that he went inside the Mall alone to steal therein. He further
N N
admitted that he only wore a glove on his left hand in order to avoid leaving
O any fingerprints. As to the fruit knife, he admitted that he was afraid that O
he would be bullied so he kept it for self-protection but had never used it
P P
before.
Q Q
Background of D
R R
S 7. According to the Background Report and Training Centre S
Report, D is 18 years old, born on 5 July 2003 in Hong Kong. His parents
T T
divorced in 2017. He is single and resided with his mother and a younger
U U
V V
-4-
A A
B B
brother in a public housing unit in Tin Shui Wai. He studied up to Form 1.
C At one stage he worked in the construction company owned by his father, C
but only for a short time. He also claimed to have worked as a chef. He
D D
was diagnosed with ADHD, oppositional defiant disorder and dyslexia
E when he was about 7 years old. He was put on medication until July 2019 E
when his Attending Doctor recommended suspension of medication as his
F F
situation had improved.
G G
8. During D’s childhood his parents did not provide sufficient
H H
care and guidance to him. He had all along been an academic underachiever
I since his lower primaries. His wayward behaviour also began to surface I
when he was still in primary education. He first came into trouble with the
J J
law in 2015. For an allegation of Common Assault he was cautioned under
K the Police Superintendent’s Discretion Scheme. He was only 11 at the time. K
Since then he became involved in triad and dangerous drug activities, and
L L
his behaviour continued to deteriorate. He is only 18 now but at such a
M young age he already has an appalling criminal record, with a total of 10 M
previous convictions, including 3 for Burglary and 1 for Possession of
N N
offensive weapon. He had been sent to Reformatory School but he did not
O seem to have benefited by the training there. His last conviction came on O
14 June 2019 when he was sentenced to Training Centre for a total of 7
P P
convictions. I understand that he was last discharged from the Training
Q Centre on 23 June 2021, about 4 months prior to the commission of the Q
present offences.
R R
S S
T T
U U
V V
-5-
A A
B B
Mitigation
C C
9. In mitigation, Mr Kwan who represented D, submitted D is
D D
entitled to the usual 1/3 discount for his early guilty plea. For Charges 1 to
E 3, Mr Kwan urged the court to pass concurrent sentences. He submitted E
that in the light of the Reports, imprisonment seems to be the only option
F F
open. He urged the court to treat the case as opportunistic Burglary and
G consider totality principle in passing sentence on D. G
H H
Assessment of Sentence
I I
10. Given the young age of D, and in consideration of the
J J
provision in section 109A of Cap 221, I called for Training Centre and
K Background Reports to provide more information to assist me in assessing K
the appropriate sentences to be imposed on D.
L L
M 11. D has been sent to Training Centre once but does not seem to M
have benefited from the training provided therein. During the current
N N
remand period, he has broken the institutional rules repeatedly for a total of
O 10 times between November 2021 and June 2022. O
P P
12. So far as Charge 4 is concerned, section 33(2)(c), which is
Q applicable to D, does not include Training Centre Order as an option. Q
Detention Centre Order is not an appropriate option either given the
R R
seriousness of the offences and Rehabilitation Centre Order is not
S applicable under section 4(2) of Cap 567. The only sentencing option open S
for this offence is imprisonment of not more than 3 years. This offence is
T T
an excepted offence, so that no suspension of sentence could be considered.
U U
V V
-6-
A A
B B
C 13. It is always difficult for the court to send a young man like D C
to prison, but it seems to me that this is the only option open for the present
D D
case.
E E
14. It is well established that the starting point for Burglary of non-
F F
domestic premises is 2 years and 6 months. In HKSAR v Cheng Wai Kai
G (unrep CACC 338/2007), the CA listed a number of factors which can be G
considered to be aggravating circumstances, including the offender has
H H
previous conviction, particularly of a similar nature and the commission of
I multiple offences. Although youth can be regarded as a mitigating factor I
(HKSAR v Tsang Chun Yin [2018] 1 HKLRD 1128), D, despite the fact that
J J
he has yet to reach the age of 19, has already had 3 convictions for Burglary.
K The present case involved the commission of 3 similar offences on a single K
occasion.
L L
M 15. D went to the Mall in late night with an intention to steal M
therein, and equipped himself with the gloves, which he wore on one hand
N N
to avoid leaving fingerprints. I do not accept that it was an opportunistic
O Burglary as suggested by Mr Kwan. O
P P
16. Having taken all relevant matters into consideration, I adopt
Q 2 ½ years as the starting point for Charges 1 to 3, and 12 months for Q
Charge 4. D is entitled to 1/3 discount for his timely guilty plea. There is
R R
no other mitigating factor warranting further discount. For Charges 1 to 3,
S D is sentenced to 20 months each. The 3 offences were committed on the S
same occasion. I order sentences for all 3 charges to run concurrently. For
T T
Charge 4, D is sentenced to 8 months’ imprisonment. This offence is
U U
V V
-7-
A A
B B
separate and distinct from the other charges. On the totality principle, I
C order 4 months to run consecutive to the sentence in Charge 1. C
D D
17. For the 4 offences D is sentenced to a total of 24 months’
E imprisonment. E
F F
G G
H H
I ( Bernard Chung ) I
Deputy District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V