HKSAR v. Cheung Wing Kin

DCCC 568/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 568 OF 2015

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REASONS FOR SENTENCE

1.Cheung Wing Kin you have pleaded guilty to one charge of burglary, contrary to section 11 of the Theft Ordinance, Chapter 210.

2.In summary at around 13:00 hours on the 2 February this year Mr Kan, who lived alone in a public housing unit at Room 720, Ping Chun House, Ping Ting Estate in Lam Tin, left home closing the door and gate behind him.  Later the same afternoon when Mr Kan returned home he found his room had been ransacked.  A metal box containing two watches and a $50 bank note kept inside a folder were found missing. 

3.Mr Kan made a report to the police who found the metal box at the fire exit staircase opposite the room.  The next morning a cleaner found the watches on a canopy near the garbage room. 

4.The police arrested you on the 28 April after finding your fingerprints on the outside of a wardrobe in Mr Kan’s room and on the outer surface of the folder in which the $50 banknote was kept.  Under caution and in a video interview you admitted committing the burglary.  

5.In passing sentence I have carefully considered everything said on your behalf by Mr Sit including that for the past six years you have been receiving treatment for psychiatric illness.  In the circumstances I called for psychiatric and psychological reports to be prepared. 

6.You cannot be given credit for a clear record having appeared in court on four previous occasions for offences of theft and burglary.  Although Mr Sit said you had not mentioned your illness in any previous case I nevertheless called for the case papers in DCCC 982/2013 and KTCC 638/2015 to see if there was any mention of your illness.

7.The correct starting point for a single burglary of residential premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment. 

8.Lower starting points have been taken where the burglary is said to be opportunistic.  You told the police that you lived on the 4th floor of Ping Chun House and that you wandered around randomly.  When you found the door and gate unsecured you pushed open the door and entered the room which you searched for about five minutes to see if there was anything valuable to steal. 

9.In mitigation Mr Sit accepts that this was not an opportunistic burglary explaining that you were trying doors of flats to see if any were open for you to go inside to randomly steal something. 

10.Although Mr Kan could not remember if he locked the door and gate he does remember closing them.  I am satisfied this is not a case  where someone passes by an open door or vacant premises and steals food or items of little value (see for example HKSAR v Cheung To Ming [2006] 2 HKLRD 260 and HKSAR v Chau Man Ying CACC 439/2011). 

11.In the circumstances I am satisfied the proper starting point after trial is 3 years imprisonment. Full credit for your plea of guilty reduces the sentence to 2 years imprisonment.   

Mental disorder

12.The reports show that you have suffered from mental illness since 2011 with two admissions to psychiatric hospitals in 2012 and 2013.  You were diagnosed to be suffering from paranoid schizophrenia having experienced auditory hallucinations.  Both the psychiatrist Dr Liu and the clinical psychologist Sherry Im are of the opinion you suffer from schizophrenia.    

13.Although reference is made to your psychiatric illness in the antecedent statement prepared in DCCC 982/2013 it would appear this was not otherwise referred to or relied on.  Somewhat surprisingly there is no mention of your illness in KTCC 638/2015.  A DATC report was called for which states that you had not suffered from any serious illness and acted out of greed.      

14.In HKSAR v Chiu Peng, Richard [2002] 1 HKC 401 the Court of Appeal accepted that a court may properly allow a discount in sentence where a defendant is suffering from mental illness which played a part in the commission of the offence.  The court said the justification for a discount in sentence by reason of mental illness was:

“…as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind. He knew that it was wrong to commit the crime, but he did not appreciate that the commission was as serious as it was: the degree of culpability was thus lessened.”

15.Chiu Peng, Richard was cited in HKSAR v Chen Xuehui HCCC 19/2012 where the court reduced the sentence imposed after trial where the defendant who suffered from Bipolar Affective Disorder displayed florid symptoms at the time of the offence.  McMahon DHCJ in Chen Xuehui said that in determining whether the illness has affected one’s culpability for the offence requires an assessment of the nature and severity of the illness and an appreciation of the relevance of its symptoms to the commission of the offence. 

16.Mr Sit explains that although you receive treatment for your illness when the drugs do not work you have illusions and hear voices which urge you to go steal.  On the day of the burglary your drugs did not work and you had an uncontrollable urge to steal.   

17.You told Dr Liu that you heard a voice telling you that there was a lot of money inside the unit and that on seeing the door was unlocked you went inside and took the money and watches.  Similarly you also told the clinical psychologist that you heard voices telling you to steal and that you checked the doors of apartments on a few floors until you found an unlocked apartment.  

18.I accept the medical evidence that you suffer from schizophrenia and the opinion of the clinical psychologist that your illness might have affected your judgment, reasoning, and consequential thinking to some extent.  owever as accepted by Mr Sit hhHHowever as accepted by Mr Sit your problems arise from your failure to take your medication.  The reports reveal that your drug compliance has been poor.  You told the psychiatrist Dr Liu that although you heard voices you only took medication five days per week.

19.In the circumstances I reduce your sentence by 2 months imprisonment to 1 year and 10 months.  You are convicted and sentenced to 1 year and 10 months imprisonment.

20.Finally further reference should be made to KTCC 638/2015.  On the 2 March this year you were sentenced to 4 months imprisonment for one offence of theft.  On your discharge from prison on the 28 April you were arrested for the present burglary.  This theft was committed four days after the burglary.  The facts of the case reveal you stole a bag left on a bench in a playground while the owner of the bag was exercising in the playground.  Had I sentenced you in respect of both offences I would have ordered wholly consecutive sentences the offences being entirely separate and distinct.