HKSAR v. Leung Lik Si, Felix

DCCC 816/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 816 OF 2015

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to burglary. 

2.He was an ex-employee of “Subway”, a restaurant at Shop 5, G/F Kowloon Bay International Trade and Exhibition Centre.  There was a CCTV installed in the premises.  At 2200 hours on 22 July 2015, PW1, a shop manager of Subway closed the shop and locked the main door before leaving.  At 1200 hours the following day, PW1 returned to the shop only to find a paper box containing some coins missing.  The paper box and coins were originally placed in an unlocked drawer under the cash register.  Some coins in the cash register were missing as well.  The loss amounted to about $1,200 in total. 

3.The CCTV footage as at 2233 hours on 22 July 2015 showed a masked male used a key to unlock the main door of the shop, took away the paper box and coins, and left by the same route.  PW2, another shop manager of Subway, identified the masked male as the Defendant, an ex-employee.

4.PW1 confirmed that every employee or part-time worker of the shop would have the key of the shop. 

5.On 24 July 2015, the police arrested the Defendant at his residence in Shek Lei Estate.  The black shirt, blue jeans, and black sneakers that he had worn in the burglary were seized during the house search. 

6.In the subsequent video-recorded interview, the Defendant said, among others, as follows:

(1) He had worked in that shop for about one year;

(2) He did not return the key of the shop after he resigned;

(3) At about 2130 hours on 22 July 2015 he set off from his home to the shop wearing the black shirt, blue jeans, and black sneakers;

(4) He had with him the key of the shop and a rucksack, which contained a black cap, a pack of face mask and a pack of plastic gloves;

(5) In a male toilet he put on the black cap, a face mask, and gloves;

(6) He used the key to open the main door of the shop and stole possibly more than HK$1,000 in all from the cash register and the paper box;

(7) He discarded the face mask and the gloves after he left;

(8) He spent all the money stolen;

(9) He had no accomplice.

Personal background and mitigation

7.He is aged 22, educated up to F. 5 level. He has a clear record.  When he was 10 years old, his parents divorced.  He lives with his mother, who is a part-time restaurant waitress.  There is no contact with his father.  After completing F. 5, he worked in fast food restaurants for a year and later pursued a two-year certificate course in plumbing and pipefitting.  After completing that course, he worked as an electrician and part-time worker in fast food restaurants.  He felt not receiving from Subway the full amount of wages due to him.  His complaints to the senior staff were to no avail.  A month before the offence, he quitted the job for the long travelling time between home and workplace.  When a friend demanded for repayment of a debt of $500, he happened to remember having a key to the premises of Subway.  Out of impulsive, he committed the present offence.

8.His solicitor Ms. Chan informs me that he has been diagnosed to have ADHD (Attention Deficit Hyperactivity Disorder) and a slightly lower I.Q.  These severely affected his mood and studies.  The medicine he was prescribed had side-effects of various kinds.  His mother was not so educated as to be able to take proper care of him in such situation. Ms. Chan has outlined the Defendant’s history of the disorder in a Chronology. I have ordered for a Background Report, a Psychiatric Report and a Psychological Report.  From these reports I am given to understand that he was suffering from dyslexia apart from ADHD.  His compliance with medicine was first irregular and then discontinued.  Presently he is not suffering from any psychiatric illness.  No psychiatric treatment is therefore necessary.  The clinical psychologist is of the view that he appeared to have committed the offence due to his impulsivity, poor consequential thinking and maladaptive problem-solving.  Psychological intervention is recommended. 

9.There is a letter from Orbis stating that he had participated in a charity event organized by Orbis in 2014.  That was a 4.5 hours’ service.  Full compensation of $1,200 has been made to Subway through court. 

Sentencing guidelines for non-domestic premises

10.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal said that the proper starting point for non-domestic premises would be 2 ½ years’ imprisonment for a first offender of full age.  As explained by Macdougall JA in HKSAR v Sim Ka-wing, CACC 450/2000, such a starting point has already included certain basic planning. 

Sentencing this Defendant

11.Neither his psychiatric nor psychological condition at the time of offence or sentence reflects any mitigating factors. Despite the use of the key and the disguise kit, the planning remained simple. It was within the range of basic planning considered by the Court of Appeal in Sim Ka-wing (above).  I adopt the usual starting point of 2 years and 6 months. There is a one-third discount for his plea of guilty.  I give him a 1-month discount for full compensation made to Subway.  The voluntary service for Orbis was too insignificant to count as a mitigating factor.  The sentence is 19 months’ imprisonment.