HKSAR v. Chu Wing Fung

DCCC 255/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 255 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to Count 2 on the Amended Indictment, the offence of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210. He pleaded not guilty to Count 1 of theft, contrary to section 9 of the Theft Ordinance, Cap. 210. The Prosecution applied for Count 1 to be left on file, and there being no objection to this application from the Defendant, I ordered that Count 1 be left on file, not to be proceeded with without leave of the Court.

Facts

2.The burgled premises was a three-storey village house located at DD 121, Lot 2147, Hung Uk Tsuen, Kiu Hung Road, Tin Shui Wai, New Territories (the “house”). There were no fences surrounding the house and it was under renovation at the material time and therefore not occupied.

3.At about 6.30 p.m. on 3 January, 2016, the owner of the house, Ms. Alva Chan May-yuet, left the house after having locked the windows and door.  She returned to the house at about 3 p.m. on 9 January, 2016 with her daughter Ms Liu Tsz-ying.  Hearing a dog bark, Ms Liu looked out of a window between the ground and first floor on the staircase of the house and saw a hand appearing outside the window. It appeared that someone was climbing down.  She immediately ran out of the house to the rear and saw a person with long hair placing on the ground a pair of shoes belonging to her mother. That person then left via the side of the house, got on a green bicycle and left in the direction of Castle Peak Road.  There were signs of ransacking in Ms Liu’s room on the first floor, and a notebook computer which had been placed in a bag together with a transformer and two batteries, worth around HK$3,000, was missing. It had originally been placed under the desk in the room.

4.CCTV footages of the house captured how the male entered and left the house.

5.The Defendant was intercepted on 11 January, 2016 as he resembled the person whose image was captured by the CCTV footages from the house. He was arrested for the offence of burglary and under caution he admitted stealing the computer for “self-use”. He also led the police to an unoccupied village house near No. 219 Shek Po Road where the green bicycle he had used when he went to the house was kept. He also led the police to the rear of the house and pointed out a bag to the police – the notebook computer, the transformer and two batteries were inside the bag. These items were identified by Ms Chan to be hers.

6.I was satisfied beyond all reasonable doubt that the facts supported the charge, and accordingly I convicted the Defendant in respect of Count 2 on the Amended Indictment on the charge of burglary.

Previous Convictions

7.The Defendant has 5 previous convictions in 4 court appearances, all similar to the present charge.  His last previous conviction for burglary was on 18-02-2014 when he was sentenced to the Siu Lam Psychiatric Centre for 6 months.

8.The Defendant is aged 29 years. He is single and lives with his parents and younger brother.  No issue was taken with the contents of the Antecedent Statement that was read into the record by the Prosecution. Defence Counsel asked that mitigation be reserved as he was feeling unwell and not in the position to properly mitigate on behalf of the Defendant. I acceded to his request.  I adjourned sentence until today, remanding the Defendant in custody and called for a Background and 2 psychiatric reports on the Defendant.   I also called for the file of DCCC 1055/2013, the file of the last conviction of the Defendant.  These are now before me and I have considered the contents.

Mitigation

9.Counsel informed me that he had explained the contents of all the reports to the Defendant and the Defendant has agreed with the contents.  Counsel submitted his plea in mitigation in writing today.  Counsel submitted that it was his instructions that the Defendant had been ill-treated by his parents and had not had a happy childhood.  This differs from what the Defendant’s mother has said when she spoke on the telephone to the Probation Officer for the preparation of the Background Report. 

10.Mr. Wu submitted that the Defendant knew he had done wrong and was prepared to face the consequences, he was remorseful as was reflected by his plea and sought leniency on behalf of the Defendant.

Sentencing Considerations

11.I have before me the Background & Psychiatric Reports that I have called for. Counsel for the Defendant has confirmed that the Defendant agrees with the contents.  I note that the 2 psychiatrists who examined the Defendant and prepared the 2 psychiatric reports in DCCC 1055/2013 wherein they recommended a Hospital Order for the Defendant are the same two psychiatrists who examined the Defendant on this occasion and have prepared the 2 psychiatric reports now before me.  The opinion of Dr. Lui Sing-heung on this occasion set out in his report dated 8 August, 2016 is set out in paragraph 8 of his report.  He opined that the Defendant ‘was suffering from a pervasive developmental disorder, of limited intelligence and marked by impaired emotions, reasoning and social relations. He has also been treated as having schizophrenia. Hospital order is not indicated given that his mental condition is stable. He should continue to attend the outpatients’ at the TMMHC for prescription and advice’.  Dr. Amy C. Y. Liu in her report dated 4^th August, 2016 opined in paragraph 6 that the Defendant ‘has known history of Paranoid Schizophrenia and Mild Grade Mental Retardation. His mental condition is relatively stable now. Inpatient psychiatric treatment is not warranted. I would respectfully recommend him to continue with further outpatient psychiatric treatment’.  The doctors also both opined that the Defendant was fit to plead.

12.The 3 reports I have before me have set out the background of the Defendant in great detail.  The Background Report disclosed that the Defendant quit school after completing Form 3 – his academic performance was poor and he had lost interest in studies.  His employment history discloses that he was unable to keep any job for any lengthy period. He was born in China, and came to Hong Kong in 1996 with his father to attend school.  His father is a Hong Kong citizen. His mother came to Hong Kong in 1998 on a singly entry permit and the Defendant’s younger brother was born in Hong Kong in 2001.  The report also reveals that the relationship between the Defendant and his mother is a poor one.  The Probation Office opined in paragraph 6 of her report that the Defendant was ‘a mild grade retardate who was suffering from schizophrenia. Though his parents paid effort in taking care of the Accused, he continued to display behavioural problems including failing to complete homework at school, idling at home with unstable employment, wearing long hair and female dress, self-muttering and indulging in computer online games.  Without self-awareness and self-control ability, the Accused repeatedly committed the offence of “burglary” from 2006 to the present.  His mother expressed that she and her husband were very tired and helpless in supervising and assisting the Accused to rehabilitate in the open.  She even could not accept the Accused to wear female dress and they had frequent conflicts. In fact, the Accused failed to gain good insight of his misbehaviours and claimed to be unable to control himself to re-offend. It seemed that his risk of re-offending could hardly be excluded unless his mental illness was properly dealt with.”

13.Both psychiatrists who have examined the Defendant on this occasion also examined him in February 2014 to prepare psychiatric reports for DCCC 1055/2013. On that occasion, they both opined that hospital treatment was indicated and recommended the making of a hospital order for the offence of burglary.  On this occasion,  they both opine that a hospital order is not indicated as the Defendant’s mental condition is stable.

14.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.

15.In the present case, I find there were no aggravating features in the commission of the offence in that the value of the stolen properties is not high, the Defendant committed the offence alone, the offence was committed at the time when the occupants had left the premises and there was no damage caused in the course of the burglary. There was no sophisticated planning nor the use of any equipment to gain entry into the house.  The house was under renovation at the time and no one was living in it.  However, in the course of the burglary, the owner of the house returned with her daughter.  The Defendant fled, but the owner’s daughter did get a glimpse of him.  The Defendant does have 5 previous similar convictions in 4 court appearances, the most recent being in 2014 when a hospital order of 6 months was made.  The reports indicate that he had no remorse for his acts.  He told Dr. Liu that he took the chance to climb into the village house as he saw a window open. He frankly admitted doing it to see whether there was any valuable that could be taken. I do view this to be an aggravating factor. He can be viewed as a persistent offender.

16.In my view, the only appropriate sentence must be a custodial sentence. I note that both psychiatrists recommend continued outpatient treatment for his mental condition – there are facilities to provide this in prison.

17.Lower starting points have been taken where premises are under renovation.  Here, the house in question was under renovation, and it was empty when the Defendant entered the premises. To that extent, I would view the offence to be an opportunistic one.  Unfortunately for him, the occupiers returned while he was still on the premises. Although there was no direct confrontation, as the Defendant managed to escape, he was seen by the occupiers as he made good his escape.  I note that the Defendant co-operated with the police upon his arrest – he admitted the offence under caution – he also led the police to an unoccupied village house and pointed out the stolen property to the police – as a result all the stolen property was recovered.

18.Having considered the circumstances of the offence and of the Defendant, I shall take as a starting point 2 ½ years’ imprisonment, which is lower than the recommended starting point for burglary of domestic premises, discount this by one-third to reflect the Defendant’s plea, and sentence him to 1 year and 8 months’ (20 months) imprisonment.  Apart from his guilty plea, I do not find any other mitigating factor justifying a further reduction of sentence.  The Defendant is therefore sentenced to 1 year and 8 months’ imprisonment on the charge.