HKSAR v. Wong Sze Wing

DCCC 726/2021

[2022] HKDC 126

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 726 OF 2021

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of burglary of a domestic premises, contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap 210.

2.Particulars of the offence are that the defendant, on 15 November 2020, entered Room 5, 4^th Floor, 92 Larch Street, Kowloon with intent to steal therein.

3.The facts of this case are straightforward.  A resident of Room 9 on the 4^th floor of 92 Larch Street heard noises outside his door at about 2 am on 15 November 2020.  He lived in a subdivided unit, that is, individual rooms were rented out within the same unit.  When he heard the noise, he opened his door and saw the defendant in the corridor outside Room 5 of that unit.  He could see the defendant prising open the door of Room 5 with a screwdriver and entering the room.  He made a police report.

4.The defendant could not be located by the police when they arrived at the scene.  However, at 10 am the next morning, the same resident saw the defendant again knocking on the door of Room 2.  He recognised her and called the police again.  This time, the police arrested the defendant at the scene.

5.A screwdriver was found outside Room 5 and prise marks were seen on the door of Room 5.  An estate agent representing the landlord of all the rooms in that unit confirmed to the police that Room 5 was vacant at the material time.

6.Under caution, the defendant said that she did not prise open the door, it was already open and she merely opened the door and put some of her bags inside the room.  Later in a video-recorded interview, the defendant said under caution that she had gone to visit a friend in that unit at about 2 am but she could not remember the room number.  When she arrived, she did enter Room 5 and leave a bag of clothes inside it before going to look for her friend.  She again denied prising open the door of Room 5.

Mitigation

7.I have received written mitigation from Ms Ku and she had said all she can say on behalf of the defendant.

8.The defendant is 28 years old, married but separated, unemployed and has a criminal record.  She has 4 previous convictions from 2 court appearances, both in 2007.  Her convictions include theft and criminal intimidation.

9.Her plea of guilty is her best mitigation. It has been stressed that she is a schizophrenic with low intelligence.  From a young age, she has abused substances including all types of dangerous drugs and alcohol.  She was first diagnosed as a schizophrenic in 2009 whilst under the influence of amphetamine, ‘Ice’.

10.I have seen 2 psychiatric reports obtained while she was on remand for this offence.  I do not intend to repeat their contents. Both psychiatrists confirmed that diagnosis.  Both confirmed that she understands this charge and is mentally fit to plead.  She does not require any compulsory psychiatric treatment.  It is recommended that she attends a psychiatric out-patient clinic to monitor her mental condition.

11.She was married but her husband returned to the Mainland in 2019.  She has twins who are now teenagers and a daughter who is now 8 years old.  She is not responsible for any of her own children.  Her daughter lives in the Mainland and her twins are cared for by a friend of her ex-boyfriend.  She was living in a half-way house prior to this offence.

12.It has been stressed in mitigation that she did not plan the burglary and was in that sub-unit looking for a friend.  Having failed to find the friend and having found a screwdriver in the corridor, she, out of momentary greed, used it to prise open the door with a view to steal from within.  There was nothing to steal inside Room 5 and she left.  She was seen there the next morning to find that same friend.

Reasons for Sentence

13.The usual starting point for a single burglary of domestic premises committed by an offender where there is no aggravating or mitigating factor is 3 years’ imprisonment.

14.This defendant has previous convictions relating to offences of dishonesty but they were many years ago and I do not, as urged, treat her as a persistent offender.

15.Luckily, Room 5 was empty and there were no occupants at the time of the burglary and no loss suffered by any occupant.

16.I have taken into account the facts of the offence and all mitigation put forward.  I will take a starting point of 3 years’ imprisonment and reduce it by 1 year for her plea of guilty at the earliest opportunity.

17.Accordingly, the defendant is sentenced to 2 years’ imprisonment.