HKSAR v. Ho Yiu Fai
Read the full judgment text of DCCC 494/2018 on BabelCite. This District Court judgment.
1. The Defendant pleads guilty to a charge of burglary.
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DCCC 494/2018 [2019] HKDC 191 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 494 OF 2018 -----------------------------------
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---------------------------- Reasons for Sentence ---------------------------- Charge and Facts 1.The Defendant pleads guilty to a charge of burglary. 2.City Taste is a restaurant situated at the ground floor of Tai On Building on Shau Kei Wan Road (“the Restaurant”). It closed at around 10 p.m. on 22/2/2018. 3.At around 7 a.m. on 23/2/2018, PW1, Mr. Wong, a cook there, arrived. 4.At around 10 a.m., he lay down on some seats and took a rest. The lights were off. Although the gate and the door were open, the Restaurant would be open to customers only at 11:30 a.m. 5.Later he heard some noise on and off. He found the Defendant near the cash register. The Defendant noticed him and walked towards the exit. He followed the Defendant, who sped up but was caught by him near the exit of the shopping centre. 6.It transpired that the Defendant had taken 14 wrapped stacks of coins and a yellow bag of coins from the locked drawer of the cash register in the Restaurant. The coins had a value of $1,181 in total. The Defendant dropped a pair of scissors onto the ground. The police seized the aforesaid items as exhibits. 7.The CCTV footage of the Restaurant captured him in the act:
Mitigation 8.The Defendant is 41 years of age. He was a casual worker before arrest. He is single and lives alone. Apart from 1 burglary record (sentenced in 2010), he had 11 theft-related records (sentenced in between 1988 and 9/2017). He was jailed for 4 months and 2 months on a consecutive basis for a theft and an attempted theft (both sentenced on 4/9/2017). On 4/12/2017, he completed this jail term. On 22/2/2018, he committed the present offence. 9.Ms. Liang in mitigation submits that this was a case of opportunistic burglary akin to the act of a sneak thief so that the sentencing guidelines of 30 months shall not be applicable. She relies on the fact that the door and the gate of the Restaurant were open when he entered and that he had no prior planning. Her instructions were that he had returned with a pair of scissors he had earlier on spotted in the public toilet outside the Restaurant. 10.I understand there is no strict definition of what a sneak thief was. If the Defendant here qualifies as one, the second entry ought to put him into a more serious category of a sneak thief. Besides, he prised open the drawer to get the money therein. 11.Ms. Liang informs me of certain difficulty at times in taking instructions from him. I call for 2 psychiatrists’ reports on him. His mental illness was known to the Hospital Authority since 2012. He had abused drugs, a significant habit leading to his schizophrenia. Just before the offence, he had taken some methamphetamine and was affected by auditory hallucination which he knew to be unreal. He appreciated that he was trying to steal from the restaurant. He is fit to plead. He still suffers from residual symptoms. In-patient treatment is not required. Out-patient psychiatric treatment is recommended. Sentencing this Defendant 12.As there was a certain degree of opportunistic burglary, I consider a starting point of 24 months on the facts. However, his repeat records for theft-related offences warrant a more deterrent sentence. I take an actual starting point of 27 months. One-third off for the plea of guilty, the sentence is 18 months. There is a 1-month discount for the recovery of all property stolen. The sentence is 17 months.
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