HKSAR v. Cheung Kwok Wah

DCCC 65/2018

[2019] HKDC 92

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 65 OF 2018

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Reasons for Sentence

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1.The defendant has pleaded guilty to charges 1, 2, 6 and 7 on this indictment. They are all charges of burglary and he has agreed the facts.

2.The first two charges relate to two separate premises on the 1st floor of a building in Sham Shui Po.  Each of the rooms within that building are described as one-woman-brothels which have normal business hours of 3 pm to 4 am.  Wooden doors were installed at the entrances.

3.It appears that one of the rooms, that is Room E, was left at about 10 o’clock in the evening on 11 November.  When the lady returned at 7.30 pm on 12 November, she discovered various items were missing which included items to do with her business and also various other matters which are valued at $167,110.

4.A CCTV was consulted and the defendant was seen to be entering the building and opening the wooden door of the relevant room, and then used a key to open another room door.  On that basis the defendant was seen to be the person who had broken into the rooms which are described as Room E and Room C on the indictment.

5.The next offences, which are offences 6 and 7, were to premises again in Sham Shui Po, a different premises.  The relevant date for these offences was 13 November 2017.  And again, the premises were left secured and were found later to have been entered into, and the premises in this case were Room A and Room B that we are concerned with here.  Various premises had been entered and ransacking had occurred within them.

6.The defendant was later intercepted on 18 November in respect of these matters.  He said he did not know anything about stealing a ring but he did admit stealing what were described as the remaining properties and some skeleton keys were found on him which he said he got from the Mainland.  Some items were recovered from his room search in Sham Shui Po but a diamond ring and a dress that had been taken from Room E of the first room were not recovered.

7.The defendant made a cautioned interview admitting the offences and giving explanation of how he came to commit them. The defendant admits that he entered Room E of the first premises taking these items: a plastic bag; a hundred condoms; a skirt; dresses; a ring; skin care products; foundation, bottles of lip gloss and nail polish, a powder puff, adhesive tape and 14 eyebrow pencils.  As far as the other rooms are concerned, he admits entering as a trespasser with intent to steal therein, not being able to find anything of value within those rooms.

8.The defendant is now aged 62.  He has a fairly lengthy criminal record of mainly petty crime involving loitering and theft, pickpocketing and shoplifting.  There is an attempted burglary committed in 1978 and a burglary committed in 1981 for which he was sentenced to 6 months’ imprisonment, a further attempted burglary in 2003 for which he received 20 months’ imprisonment, but since then he has committed theft and loitering and offences of pickpocketing.  So the last burglary conviction for the defendant was some 15 years ago.

9.He has a somewhat unfortunate health background and I obtained reports on him to see the extent of his disease.  He has been receiving treatment for carcinoma of the sigmoid colon since a diagnostic colostomy in May of 2018.  He was found to have a stage 3 cancer.  Since then he has been under treatment, eight cycles of chemotherapy which would appear to have finished on 15 October 2018.  He is now seen as an outpatient from 6 November. In fact there was a further cycle of chemotherapy which was scheduled for 7 November.  It says so far there was no evidence of cancer relapse but stage 3 cancer is serious and the defendant has been under treatment effectively since May for that illness, and it would appear that treatment is continuing.

10.I did obtain psychiatric and psychological reports on the defendant.  The psychiatric report describes the defendant as being a man with a mild grade mental retardation and dissocial personality traits.  Psychiatric care is not warranted in this case, but this report would suggest the courts should approach the defendant as a man with mental difficulties which is relevant to the way in which sentence will be carried out. It is relevant because he is what I think you would describe as mentally challenged and it is certainly relevant to sentencing.

11.There is a psychological report.  The defendant in his cautioned statement had admitted some what I would describe as fetichistic approach to these offences.  The psychological report describes the defendant as functioning with borderline intelligent or mild mental retardation, a  life filled with boredom and loneliness and sex is his major pastime.  Signs suggestive of fetichistic disorder were detected.  It says the majority of his convictions appear to be sexually motivated involving stealing female clothing and wandering around women’s toilets.  He is said to have a risk of recidivating to similar offences and a moderate low range of psychological treatment is recommended too.  So we hope he receives that while he is detained alongside his treatment for the cancer.  So it can be seen from this review the defendant is challenged in many ways, he is challenged in his health, suffering from a serious form of cancer, he is challenged in his mental capacity and psychiatrically and psychologically.

12.Turning to the offences.  I am dealing with four offences of burglary committed at what is described as one‑woman-brothels.  I think I have to regard those as being what would be described as non-domestic premises.  They were being commercially operated, so I have considered that the guideline appropriate to a non-domestic premises is the right one for this defendant.  That would mean that on each of these burglaries the normal starting point for sentence for a person of clear record who pleaded not guilty would be one of 30 months’ imprisonment.  The defendant is not a person of clear record by any means and has a number of attempted burglaries in his past and was sentenced to a substantial sentence of 20 months’ imprisonment for an attempted burglary back in 2003.  That is actually quite a substantial time ago and in respect of this particular defendant I do not necessarily take it as being an aggravating factor for him given the length of time since his last burglary.

13.The question now to determine is, are there any mitigating circumstances?  Well, there is certainly his plea of guilty.  There is a question of his health, but I will look at that in respect of the overall totality of sentence because there are a number of offences here committed on separate occasions.  So the other major mitigating factor of course is the defendant’s plea of guilty.  He has entered pleas of guilty to all these four offences.  He is entitled to a one-third discount for that.  What I shall do is therefore order on each of these charges, 1, 2, 6 and 7, after a one-third discount, the sentence on each of these charges should be one of 20 months’ imprisonment.

14.The question of overall totality must be addressed.  To order these sentences to be served consecutive would obviously lead to a lengthy sentence which would be out of proportion to the criminality.  The offences are bracketed, the 1st and 2nd, and the 6th and 7th, and they are committed within separate premises and are committed one after another, and so I consider the 1st and 2nd offence and the 6th and 7th offences should be served concurrently to each other.

15.Now the question is of course, should any part of those bracketed offences be served consecutively to each other?  And I examine the issue of overall totality.  The offences are a part of a series of offences committed in November at one-woman-brothels and so I consider that some element of them must be served consecutive, although in most of the offences nothing of value was taken, but they are still serious offences.

16.The other factor of course is the defendant’s physical and mental challenges.  He will of course be looked after well where he is now, in prison, and so I have no need to really factor in his medical problems beyond the fact it may make his incarceration somewhat more difficult.

17.I consider, having regard to all those factors, an overall total sentence of 30 months’ imprisonment is appropriate for this defendant for these four offences.  So I am going to order that 10 months’ of the sentences of offences 6 and 7 be served consecutively to the 20 months of the offences in Charges 1 and 2, which leads to a total overall sentence of 30 months’ imprisonment.