HKSAR v. Cheung Ping on

DCCC 711/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 711 OF 2015

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REASONS FOR SENTENCE

The defendant pleaded guilty to 2 charges of "Burglary". He burgled a shop and a residential unit within a month. All stolen properties were recovered from his home.

Summary of Facts

Charge 1

2.Mr. LI (PW1) was the proprietor of an engineering company situated at the address particularized in Charge 1 ("the Shop"), which is a street-level shop.

3.About 11:00 am on 19 May 2015, PW1 left the Shop without locking its door.  He returned around 2:00 pm.  About 4:00 pm, PW1 discovered a computer monitor which was placed near the entrance missing.

4.CCTV footage of the Shop captured the defendant entering the Shop and taking the computer monitor around 12:30 pm.

Charge 2

5.Madam LEE (PW2) and Mr. CHAN (PW3) were a couple residing at the address particularized in Charge 2 ("the Flat"), which is a unit situated at the roof of a building.  A CCTV camera was installed at the Flat to monitor its main entrance.  The CCTV system was connected to PW3's mobile phone, which would alert him if someone had entered the Flat.

6.About 12:15 am on 23 June 2015, PWs 2 and 3 were both at work.  PW3 received a phone alert that someone had entered the Flat.  He saw on his mobile phone CCTV footage of the defendant switching off the light and leaving the Flat.

7.About 2:15 am, PWs 2 and 3 went to the police station to make a report.  At the same time, PW3 received another phone alert and saw the defendant inside the Flat again. PWs 2 and 3 recognized the defendant being their next door neighbour.

Arrest and Admissions

8.About 2:50 am, the Police arrived at the roof of Tai Hong Building and saw the defendant leaving his home.  He was stopped for enquiry and his home was searched.  From the defendant's wardrobe, the Police found 2 bras, 2 pairs of underpants and 1 slip dress, all of which belonged to PW2.  Under caution, the defendant admitted that he stole the undergarment for masturbation.  He also admitted having stolen the computer monitor and sold it at $530.

9.In his video recorded interview, the defendant claimed that he was residing at a unit located next to the Flat.  He used a metal wire to prize open the door of the Flat and stole the undergarment in the early hours on 23 June 2015.  He took the undergarment home.  He did so because he could not control himself.

10.The defendant's home was searched again at 12:30 pm on the same day.  The Police found 60,000 Japanese Yen in cash inside a wallet placed on a coffee table and 3 keys on top of a wardrobe, all of which belonged to PWs 2 and 3.  PW1's computer monitor was also found.

11.Under caution, the defendant admitted having stolen the 3 keys and the 60,000 Japanese Yen from the Flat.  He also admitted that he had lied about having sold PW1's computer monitor.  In his 2^nd video recorded interview, the defendant claimed that he entered the Flat by climbing through its toilet window.  He stole the keys, which were placed behind the door, in order to play a trick on PW2.

Mitigation & Sentence

12.The defendant is 44 and single. He has 14 conviction records, which include 11 "Theft" offences. His first conviction is dated September 1985 when he was only 14. Defence lawyer Mr. LAI informed me that the defendant has been a patient of mental illness since 1994 due to drug abuse. During the remand period, he was sent to public hospitals as well as Siu Lam Psychiatric Centre a few times for management of his mental illness.

13.A total of 4 medical reports on the defenadnt's mental health were placed before me. He was assessed to be fit to plead[1]. The defendant was last seen by a psychiatrist on 24 December 2015. The prognosis was he "suffers from paranoid schizophrenia with a history of stimulant use (methamphetamine). His prognosis was grave as he had poor motivation for quitting substance, which would perpetuate his mental illness."[2]

14.In mitigation, Mr. LAI submitted that the defendant admits he knew what he was doing at the time of the offences; he was nevertheless suffering from mental problems. He had in fact claimed under caution that he could not control himself (from taking PW2's underwear). Mr. LAI further submitted that the value of the stolen properties was insignificant; and they have all been recovered. Furthermore, there are no aggravating factors in the present case.

15.I am aware of the defendant's mental health history. It is indeed pitiful and sad. If drug abuse was, however, the cause of committing the present offences, the defendant has no one but himself to blame. Being a released prisoner, he must have known how to seek help.

16.The normal starting point for non-domestic and domestic burglary is respectively 2.5 years' and 3 years' imprisonment. The defendant has no previous conviction of "Burglary", but committing 2 burglaries within a month can be regarded as an aggravating factor[3], needless to say he has multiple convictions of "Theft" offences. After due consideration, I have decided not to raise the starting point for either charge.

17.For Charges 1 and 2, I adopt the usual starting point of 2.5 years' and 3 years' imprisonment respectively. With the guilty plea, the sentence is reduced to 20 months and 2 years respectively. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence is 20 months' and 2 years' imprisonment respectively.

18.Bearing in mind the totality principle, I consider a global starting point of 3.5 years to be appropriate for both charges. With the guilty pleas, the overall sentence is reduced to 28 months. As all stolen properties were recovered and the defendant being a mental health patient, I will grant a further reduction of 2 months. Hence, I order 2 months in Charge 1 to run consecutive to Charge 2. Thus, the total prison term shall be 26 months.