HKSAR v. Lee Man Kai

DCCC 430/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 430 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to one count of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210 and one count of theft, contrary to Section 9 of the Theft Ordinance, Cap. 210.

The first charge

2.Mr Chan has resided at Room 312, Block B, Telford Gardens, No. 33 Wai Yip Street, Kowloon Bay with wife and two children since July, 2015. He understood from his landlord that all the keys to the premises had been given to his custody. On 25^th January, 2016, at about 10.40 a.m., he was the last one to leave his home after closing the wooden door and securing the lock of the metal door. When he returned at about 1.30 p.m., he found the metal gate was locked but the wooden main door was left ajar.  He entered the flat and heard some noise coming from his daughter’s bedroom. Then he saw a male stranger, the Defendant, leaving his daughter’s room quickly. He tried to stop him but failed. He chased after the Defendant,   who fled via the staircase. He lost sight of the Defendant at the fourth floor after he ran past the fire door. Mr. Chan therefore called the police. Police officers arrived at about 1.40 p.m. and conducted a sweep of the building. PC 48620 spotted the Defendant acting suspiciously behind the fire door of the third floor – he saw the Defendant entering Room 309 and stopped him.  Upon inquiries, the Defendant told him that he lived at Room 514 of the building and was checking the renovation work at Room 309. He also pointed to a white backpack inside Room 309 and said it belonged to him. The police officer checked the backpack, and found it contained some personal belongings of the Defendant including an Octopus card, the subject matter of Charge 2.

3.Whilst this police officer was making inquiries of the Defendant outside Room 309, Mr. Chan was standing at the opposite end of the same corridor relating the incident to other police officers. He identified the Defendant as the man he had seen inside his flat. The Defendant was arrested by the police at 1.45 p.m. Under caution, he admitted that he had entered Mr. Chan’s flat and attempted to steal, and that he had placed the key to Mr. Chan’s flat at the ventilation window of the eighth floor  The Defendant then brought the police to the eighth floor, where the key to Mr. Chan’s flat was retrieved by the police officers from the ventilation window. Under further caution, the Defendant admitted having used the key to enter Room 312.

4.After returning to the Ngau Tau Kok Police Station, a body search was conducted on the Defendant and a key was found from the Defendant’s right trousers pocket – under caution the Defendant admitted to having used that key to open the door of Room 309.

5.During a subsequent video interview under caution, the Defendant    admitted that he lived at Room 514 of the same building. Several months earlier, when both Rooms 309 and 312 were being renovated, he obtained the keys to the two flats from the ventilation window on the third floor, duplicated the keys and replaced them in the original place. He knew of the practice of the renovation workers of placing the keys of the premises under renovation on the ventilation window as he himself was also in the renovation industry.

6.At 1.15 p.m. on 25^th January, 2016, he entered Room 309, which he knew was vacant, with the duplicate key to observe the situation in Room 312,   and left his backpack in Room 309.  He rang the doorbell of Room 312 to confirm that no one was there, and then entered Room 312 with the key he had duplicated a few months earlier.  After entering, he entered the room of a female and checked the closets for 2-3 minutes to see if there was any female underclothing – he had a habit of collecting female underclothing.  Suddenly, he noticed a man had entered the flat – he thus fled via the staircase, chased by the man. When he saw that the man had stopped chasing him, he went to the eighth floor and placed the duplicate key of room 312 at the ventilation window on the eighth floor. He then went to collect his backpack from Room 309 – he was arrested by the police.

The second charge

7.The Octopus card found from his backpack did not belong to him. He had picked it up from a seat on a bus in early January, 2016 and had used up the stored value of about $100 on the Octopus card for transportation and buying food.

Previous Convictions

8.The Defendant has 1 previous conviction for theft in 2000, for which he was fined $1,000.  According to what he told Dr. Dorothy Tang when she interviewed him for the Psychiatric Report now before me what he had stolen was female underpants as he was too embarrassed to purchase them.

Mitigation

9.The Defendant is now aged 55 years. No issue was taken on the contents of the Antecedent Statement save to correct the ages of his 2 sons to 20 years and 14 years from 18 years and 13 years as set out in the statement.  I note that in the Psychiatric Report from Dr. Dorothy Tang, his sons are recorded therein as being aged 19 years and 15 years. In the Background & Psychologist’s Reports, their ages are recorded as 20 years and 15 years respectively.  In my view, in any event, the discrepancy in the ages of his sons is insignificant.  He had been a decoration worker for over 30 years. He started his own business last year. As he has a heart problem, he wanted to lessen his work load and study more on a subject he has interest in, namely cookery. Photographs of the decoration work he had done as well as the cakes and cookies he had baked were submitted in mitigation.  It was submitted that he had no financial problems. The mortgage of the flat he lived in at Telford Gardens had already been paid off. A number of letters were also submitted in mitigation from the Defendant and other family members as well as from Mr. Chan Wing Chong, the headmaster of the Holland Boys’ Home, who was also in court to show his support of the Defendant.  He described how the Defendant together with his wife and elder son would visit the boys in the home and send the home gifts such as mooncakes during festivals for the boys.  The Defendant looked after one particular inmate who has now grown up and still keeps in touch with the Defendant.  In his letter in mitigation, the Defendant expressed his remorse and sought leniency. He said that he offended because of pressure. His wife also wrote a letter, describing the Defendant as a good son, good husband and good father. She was shocked by the present offence, and sought leniency for the Defendant.   The two sons of the Defendant also each wrote letters seeking leniency for their father.  The Defendant’s younger brother also wrote a letter to seek leniency for the Defendant and was also in court to show his support for the Defendant. There were also letters from another younger brother, from a cousin and a friend, all seeking leniency for the Defendant.

Sentencing Considerations

10.Mr. Fung for the Defendant submitted that the Defendant was not the classic type of burglar – he had a stable job and family, no financial problems and this was a single fall from grace.

11.For offences of burglary, Section 11(4) of the Theft Ordinance provides for a sentence of 14 years’ imprisonment upon conviction on indictment. There is a well settled sentencing guideline for burglary of domestic premises. According to the guideline, the starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.  For offences of theft, Section 9 of the Theft Ordinance, Cap. 210 provides for a sentence of 10 years’ imprisonment upon conviction on indictment. Here, the theft of the Octopus card is really one of theft by finding. There is no sentencing guidelines for such offences.

12.As far as the Defendant’s previous conviction record is concerned, he has no previous conviction for burglary. For the conviction for theft, that offence of theft was committed in the year 2000, and he was fined $1,000 – it is a spent conviction.  For the purpose of sentence today, I shall disregard his previous conviction.

13.In the present case, I find there was no aggravating feature in the commission of the offence of burglary in that no property was actually stolen, the Defendant committed the offence of burglary alone and the offence was committed at a time when the occupants had left the premises.  But clearly there was a degree of planning – the Defendant had copied the key to the burgled premises months before when it was under renovation and copied the key of another nearby flat which was also under renovation. He hid in the nearby flat and observed the burgled premises to check the occupants had left the premises and then rang the doorbell of the flat to ensure no one was in the flat.

14.Although the Defendant has admitted to having a fetish for women’s underwear, the various reports I have called for all indicate he does not suffer from any psychiatric illness requiring follow-up treatment. I accept too that there is no evidence that the Defendant had specifically targeted any particular victim, although the particular flat was clearly targeted.

15.In sentencing the Defendant, I have borne in mind all that Counsel has urged upon me in mitigation, as well as the contents of the various letters submitted in mitigation and the various reports I have called for. I accept that the Defendant has a stable and supportive family, and he has a stable job and income, and the offence of burglary was not committed because of financial need.  In respect of the theft charge, the Prosecution has proceeded on the basis of ‘theft by finding’. I am satisfied that the Defendant acted out of greed in keeping the Octopus card and using up the stored value on the card.

16.In Paragraph 4 of the Background Report, the Defendant claimed to the interviewing officer that he did not have much knowledge of home decoration and had learnt of decoration works at Rooms 309 and 312 of the building where he lived.  He therefore copied the keys and planned to sneak into the flats to have a look at the decoration work.  On the day of the offence, he had an appointment and thought to have a look at the decoration works. He left his bag in Room 309 and saw some dolls in a bedroom in Room 312 and impulsively opened the drawer of the closet and saw some female underwear therein – at that point a man came into the flat and he rushed out. He denied any intention to steal or collect women’s underwear. He said something similar when interviewed for the Psychiatric Report in paragraph 8 of that report – he claimed to have an urge to look at female underwear and opened the drawers in the room. He said something similar when interviewed for the Psychologist’s Report, in paragraph 9 of that report.  However, Mr. Tse for the Defendant today informed the Court that the Defendant maintained his plea of guilty and his admission of the facts as contained in the Amended Summary of Facts – that he had entered the flat with the intention to steal therein and had entered a female’s room and checked the closets for 2 to 3 minutes to see if there were any female underclothing as he had a habit of collecting female underclothing. He fled when he noticed that a man had entered the flat.

17.It is clear from the Psychiatric Report that the Defendant does not suffer from any psychiatric problem.  The view of the Clinical Psychologist from the Psychologist Report was that the Defendant ‘had developed a fetishistic in female underclothing for more than 10 years, though not to a pathological degree’.  He viewed the Defendant’s risk of violent or sexual re-offending to be low and therefore no psychological follow-up was recommended.

18.As the premises involved in Count 1 are domestic premises, the appropriate starting point is one of 3 years’ imprisonment. I shall reduce this starting point by a further 6 months to reflect the mitigation put before me and the positive good character of the Defendant as reflected in the letters of mitigation put forward on his behalf.  Since the Defendant pleaded guilty to the charge he is entitled to the usual 1/3 discount on his guilty plea. Therefore, the sentence is reduced to one of 1 year and 8 months’ imprisonment in respect of Charge 1.

19.The basis for the theft charge is theft by finding. I consider the appropriate starting point is 3 months’ imprisonment for the 2^nd charge. I shall reduce this starting point to one of 9 weeks’ imprisonment to reflect the mitigation put before me and the positive good character of the Defendant.  Since the Defendant has pleaded guilty, he is entitled to the usual one-third discount, and he is therefore sentenced to 6 weeks’ imprisonment on the charge of theft.

20.Taking into consideration the totality principle, I consider a total sentence of 1 year and 8 months’ imprisonment is sufficient to reflect the total criminality of the Defendant. In the circumstance, I order that the sentences on charges 1 and 2 are to run concurrently.