HKSAR v. Leung Lit Shing, George

DCCC 178/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 178 OF 2016

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to a charge of "Burglary". He burgled a restaurant situated at a shopping mall and stole cash in the sum of about $2,000 and 2 packs of cigarettes.

Summary of Facts

2.Madam NG (PW1) is the owner of a steakhouse situated at the 2^nd Floor of Wo Che Plaza in Shatin ("the Steakhouse").  Its address is particularized in the Charge.  PW1 also owns a Japanese restaurant located next to the Steakhouse.  Both restaurants are separated by partitions and one can gain access from one place to the other.  The opening hours of the Steakhouse are 7:00 am to 10:30 pm.

3.About 7:30 am on 15 September 2015, staff members of the Steakhouse discovered cash in the sum of $2,080 missing from the cash register.  The case was reported to the Police.

4.CCTV footage of the Steakhouse captured the defendant entering the premises around 2:25 am on 15 September 2015 by climbing over the partition between the 2 restaurants. He then went through the drawers under the cash register and stole 2 packets of cigarettes from one of the drawers.  He soon found the key to the cash register from another drawer.  He opened the cash register and took the cash inside.  He left the Steakhouse by climbing over the partition into the Japanese restaurant.

5.CCTV footage of the Steakhouse also showed the defendant wearing a black T-shirt (E1) with stripes on the left sleeve; the number "09" on the right sleeve; and a logo on the left chest.  The defendant's face could not be seen clearly since he was wearing a surgical mask.

6.CCTV footage of Foo Wo House, Wo Che Estate showed the defendant (wearing a T-shirt of the same design as E1 and a pair of white sneakers (E2) with no mask on) leaving the building around 2:05 am in the same evening.  He walked towards the footbridge leading to Wo Che Plaza.

7.CCTV footage of the fast food restaurant located next to the Steakhouse captured the defendant (wearing the same T-shirt as E1 with no mask on) walking past that restaurant a few times between 2:06 am and   2:11 am in the same evening.  At 2:23 am, the defendant had a surgical mask on and entered the fast food restaurant by pushing aside the barriers.  He left after 10 seconds.

8.On 16 September 2015, PC 8434 (PW2) saw the defendant smoking outside a flat on the 21^st Floor, Foo Wo House, Wo Che Estate.  He was wearing E1 at that time.  PW2 arrested him.  Under caution, the defendant denied having burgled the Steakhouse and gave an account of his whereabouts during the early hours on the previous day.

9.The defendant's home was searched and the Police seized, inter alia, his T-shirt (E1) and a pair of sneakers (E2).

10.In his 1^st and 2^nd video recorded interviews, the defendant explained in details his whereabouts during the early hours on 15 September 2015.  In his 3^rd video recorded interview, CCTV footage of the fast food restaurant and Foo Wo House were shown to him.  He remained silent.

Mitigation & Sentence

11.The defendant is 25 and married (his wife resides in the mainland). He has 2 conviction records, which included 2 "Theft" offences. He was recently sentenced to 6 months' imprisonment (with an expected release date on 3 July 2016).

12.In mitigation, Mr. CHAU submitted that in the evening of the offence, the defendant walked by the restaurants and saw no guards outside. Out of momentary greed, he went inside the Steakhouse to steal.

13.In view of the defendant's mental health history, I decided to call for 2 Psychiatric Reports. Both psychiatrists are of the opinion that the defendant suffers from Bipolar Affective Disorder. His mental condition is largely stable at present with titration of medication. No in-patient treatment is required, but out-patient follow-up is recommended.

14.This afternoon, Mr. CHAU clarified that although the defendant has claimed to both psychiatrists that at the time of the offence, he heard non-existing voices telling him to steal, he knew it was wrong for him to do so. Since a Hospital Order is not required, Mr. CHAU accepted that imprisonment seems to be the only sentencing option.

15.The defendant is no stranger to theft-related offences. I accept that he may well be suffering from a mental illness; it does not give him an excuse to commit any offence. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. I adopt the same starting in the present case. With the guilty plea, the sentence is reduced to 20 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 20 months' imprisonment.

16.Based on the recommendations of both psychiatrists, I invite the Commissioner of Correctional Services to arrange for the defendant to receive the necessary treatment for his Bipolar Affective Disorder.