HKSAR v. Chau Luen Chiu

DCCC 211/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 211 OF 2017

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant has pleaded guilty to a single offence of burglary committed on 4 January 2017 at a building in Connaught Road West. The defendant lived in the building when the burglary occurred as did the victim who is described as PW1. And on 4 January, in the late afternoon, she closed the door of her room which would have locked automatically, and there was a password lock on the door.

2.When she returned a few minutes later to get a wallet, she noticed the room to the door was slightly opened and that the defendant was searching among her belongings inside the room.  As soon as she shouted, the defendant came out of the room, and PW1 recognised the defendant, a person who lived in another room of the same flat, and he had been living there before PW1 moved in, and she had seen him in the common area of the flat but she had never given him the password for the lock to her door.  It was found that nothing had been stolen from the room.

3.The defendant was arrested and made a reply under caution.  He said he had seen PW1’s password and went inside to look out of curiosity.  In his video-recorded interview, he went into some more detail. He had seen her in the common area and had what he described as a crush on her.  He knew he would be moving out of his flat soon and he wanted some memento such as a photograph.  He had memorised her password earlier and used that password to get into her room.  He was looking in particular for a photograph but in the short time he was in there, he was not able to find anything.

4.Naturally, I convicted the defendant as those facts do support the charge of burglary.  I believe that would be more normally described colloquially as stalking or a form of aggravated loitering, but it does also constitute the offence of burglary, and as is known in this jurisdiction, the offence of burglary is a serious offence.  

5.As far as the defendant is concerned, he is a person of clear record.  He is now aged -- I believe he is 28 now, yes, aged 28 and has been qualified as a surveyor since 2016.  In February 2017, he has concluded work and there has been a somewhat unfortunate history recently of the defendant’s father dying, passing away, and the defendant becoming stressed as a result of that.

6.As far as the defendant is concerned, I have a number of reports upon him, psychiatric and psychological reports, and various mitigation letters.  I also obtained a community service suitability report upon him at a later stage.  The reports into the defendant’s personality are interesting and of help in this case and help explain his unusual behaviour. The defendant is described in the psychiatric report, noting he has received education as a Bachelor of Science at the Hong Kong Polytechnic in 2010, worked as an intern in the Buildings Department, in 2013 joined a construction company as assistant building surveyor, eventually after failing his exams, passing at a later stage and securing professional qualifications, achieving the rank of building surveyor in 2015. 

7.It is noted the defendant’s father was a retired driver who at the time of the report was suffering from a terminal illness, the defendant describing himself to the psychiatrist as introverted and asocial and low in self-esteem.  The defendant’s description of the offence is the same as he gave to the police.  He had developed a secret affection for this young lady.  He was too shy to talk to her but found out the password on her door in the flat. 

8.The defendant was described as remorseful, depressed and anxious.  By the time of the interview in May 2017, he was mildly anxious and depressed.  The overall conclusion by the psychiatrist: the defendant has a vulnerable and neurotic personality, introverted, asocial, low in self-esteem, insecure and shy, finds it difficult to express his desires in an open way, and because he could not find a way to openly approach this girl, he undertook the train of events that led to this incident. 

9.The risk of further offending is described as low.  He appears apparently generally remorseful and learnt a lesson and does not appear to have any mental illness or sexual perversion.  It is thought the defendant would benefit from psychiatric or psychological treatment. 

10.The defendant was remanded in custody so that the psychological report could be obtained, and the conclusions of the psychiatric report echo the report the defence prepared.  The defendant is described as introverted, passive, secretive and self-centred.  He is described also as socially inept.  The conclusion was the defendant’s insight into his own problems is inadequate.  He was ignorant of the consequence of his reckless behaviour.  But again the conclusion of the psychologist is that the defendant’s risk of re-offending is assessed to be low.  In other words, despite the problems that are identified in the defendant, he is unlikely to commit this or any other kind of offence again.  Again the psychologist considers the defendant needs some psychological treatment to target his mood management and interpersonal skills.

11.And of course how does one approach the sentencing of a person such as this for an offence of this kind?  This is in fact a domestic-premises burglary.  That is clearly a serious offence.  A person of clear record after trial can expect a starting point for sentence for this offence of up to 3 years’ imprisonment, and that shows how seriously the offence of burglary is considered by the court.

12.However, burglaries can be committed in a very wide range of circumstances.  This is not by any means what I would describe as a run-of-the-mill burglary.  There is no financial motive and no actual breaking into the flat, the flat was accessed through the obtaining of a password, and the motive of the offence is a warped and unusual sense of affection rather than criminal enrichment.  And in my view, the facts place it in another category of offending which would involve the harassment of young women, and in such a case, for a person of clear record, one would be looking at his risk of re‑offending and whether the sentencing process can in some way rehabilitate him or deter him from that kind of behaviour.  There seems realistically no prospect that the defendant would commit what would be called a commercially-centered burglary.  The court should be concerned with deterring and stopping him from approaching young women in this fashion.

13.As far as sentence is concerned, there are a number of options that are possible for this defendant, ranging from a custodial sentence, an immediate sentence of imprisonment through to a community service order which I will deal with in a minute but the defendant is in fact recommended for such an order. 

14.As I said, one must bear in mind the range of sentencing that is appropriate for an offence such as this and that the normal sentence for a domestic-premises burglary would be one of immediate imprisonment for up to 3 years on a plea of not guilty.  But in the case of HKSAR v Leung Pui Shan in 2007, these courts have been reminded that there is a danger in sentencing becoming over-mechanical and where there is too little regard for unusual circumstances that might arise in relation to the commission of particular offences and too little regard to circumstances peculiar to the offender, and consistency in sentencing is important but consistency does not dictate blindness to individual circumstances and there should not be an overly rigid preoccupation with uniformity.     

15.I consider that in this case, it is possible for the court to depart from what I have described as the usual guideline sentence.  And because of that, I obtained a report from the probation services as to the defendant’s suitability for a community services order.  This is an alternative to an immediate sentence of imprisonment.  It is an unusual disposal for a case of burglary, but it would not be the first time this has happened in the courts of Hong Kong.  The defendant fits all the categories of a person who would be suitable for such an order.

16.The report itself sets out its background of the defendant and the defendant’s unusual affections and solitary living habits.  It is considered the defendant may be suitable for community work and that a special condition for psychological treatment or consultation should be added to the order.  The defendant has in fact continued with some psychological treatment on his own initiative. 

17.Having considered all the factors in this case, I think the court can in this case take the exception and unusual course of imposing a community service order on the defendant, and this is directly ordered as an alternative to a sentence of immediate imprisonment.  

18.What I shall do on this charge is impose an order that the defendant serve a total of 220 hours of unpaid work to the community with a special condition that the defendant is to receive psychological treatment and consultation as and when directed by his supervising officer.

19.Now, Defendant, this order requires your consent.  You must understand the nature of this order.  Over the course of the next 12 months or longer, if extended, you are to provide a total of 220 hours of unpaid work to the community.  This must be done to the satisfaction and at the direction of the supervising officer of any scheme upon which you are placed. You must perform that work as and when directed.  If you have any difficulty in performing that work, then that must be referred back to this court.  You must follow all reasonable instructions of the probation officer which will supervise the scheme.  You must also regularly attend the psychiatric or, sorry, the psychological treatment that you will be directed to attend by your supervising officer.

20.If you breach any of those conditions or fail to perform the work as directed, you will be brought back to this court and you can be sentenced again for the offence of which you were originally convicted. Do you understand this?

DEFENDANT: Understood.

21.Do you consent to perform the work?

DEFENDANT: Yes.

22.Yes, I think yes, all right.  Then I will make that order then.