HKSAR v. Thapa Kishan

DCCC 955/2021

[2022] HKDC 1314

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 955 OF 2021

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REASONS FOR SENTENCE

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1.The defendant was charged with 3 counts of Burglary, contrary to section 11(l)(b) and (4) of the Theft Ordinance, Cap 210.  The defendant pleaded guilty to charges 2 and 3.  Upon Prosecution’s application, charge 1 was ordered to be kept in court file, not to be proceeded with without leave of the court.

FACTS

Charge 2

2.Ms Wong Sze Man (“PW1”)  was a dishwasher at a restaurant called “King of Roast Goose” situated at Ground Floor, No 119 Fuk Wing Street, Sham Shui Po, Kowloon, Hong Kong (“Shop 2”).

3.On 18 July 2021 at around 5 pm, PW1 hung a white recycle bag containing her belongings on a metal rack affixed on the wall of the rear staircase between ground floor and first floor near Shop 2’s rear door, which usually remained open for customers to use the washrooms.  The white recycle bag contained a wallet, Octopus card, a Hong Kong Identity Card, a Home Visit Permit, an ATM card, cash of HK$ 1,200, cash of RMB ¥260 and two keys.

4.At around 6:40 pm on the same day, PW1’s white recycle bag was found missing when she returned to the rear staircase.  She then reported the case to the police.

5.CCTV footages of Shop 2 captured the defendant entered the kitchen of Shop 2 from the back alley.  The defendant ransacked PW1’s white recycle bag hung on the rack at 6:14 pm and then left Shop 2 with PW1’s white recycle bag at 6:17 pm.

Charge 3

6.Mr Chung King Nam (“PW2”)  was the owner of a restaurant named “Yau Wok Hei” situated at Ground Floor, No 174 Yee Kuk Street, Sham Shui Po, Kowloon, Hong Kong (“Shop 3”).  Shop 3 was open daily from 11 am to 10 pm.

7.On 18 July 2021 at around 11:45 pm, PW2 secured the front and back doors before leaving Shop 3.  On 19 July 2021 at around 12:55 am, PW2 received a notification from Shop 3’s alarm system that unusual movements were detected in the shop.  He immediately viewed the CCTV of the shop from his mobile phone and saw the defendant ransacking the cashier and cabinets therein. PW2 then reported the case to the police.  At around 1:12 am, the Police arrived Shop 3 and found that the back door was left ajar and its lock was damaged.  The defendant was found hiding underneath a dining table inside Shop 3.  The defendant placed an iPhone, which belonged to Shop 3, on the table as he stood up.  The defendant was arrested.  The defendant had cash of HK$88 and MOP$5 on him.

8.CCTV installed above the cashier inside Shop 3 captured the defendant ransacking the cashier and a counter and then opening different cabinets from 12:51 am to 12:54 am on 19 July 2021.  PW2 confirmed that the cashier and back door of Shop 3 were damaged.

9.On 20 July 2021, a video-recorded interview was conducted with the defendant with the assistance of a Nepali interpreter.  In respect of charge 2, under caution, the defendant admitted he entered Shop 2 through its rear entrance since it was opened.  He took the white recycle bag and used up the cash inside the bag.  He disposed other items in a nearby bin.  In respect of charge 3, under caution, the defendant admitted that he was looking for a shelter as it was raining.  He pulled Shop 3’s back door forcefully to open it without using any tool and entered through the door.  He attempted to open the cashier but failed.  He ransacked Shop 3 in order to find ways to prize open the cashier.  He would have taken the iPhone should there be no police intervention.  The green umbrella seized at the scene belonged to him.

CRIMINAL RECORD

10.The defendant has 16 previous convictions in 11 court appearances, 6 of them are similar to the present charge. 

MITIGATION

11.The defendant is aged 32 years and married with two children.  He is a construction site worker.

12.Ms Ku, on the defendant’s behalf, submitted that the burglary for charge 2 was opportunistic and akin to that of a sneak thief.  Therefore, discount should be given to it.  She relied on the case of HKSAR v Cheung To Ming [2006] 2 HKLRD 259.

13.Ms Ku, in her submission, admitted that the criminal record of the defendant is a factor that the court can take into account to enhance sentence.  Ms Ku referred the court to HKSAR v Lui Bing Ching DCCC 538 & 698/2018.  In that case, an enhancement of 3 months was ordered for the defendant who had 27 previous convictions of burglaries and 3 months of each of the 2 counts to run consecutively to the third count of burglary making a total of 28 months’ imprisonment term for 3 counts of burglary charged.  Ms Ku invited the court to take the same approach on enhancement and to consider a similar sentencing approach if the court is in mind to pass an immediate custodial sentence. 

14.However, Ms Ku urged the court to accept the recommendations made by the two psychiatrists who had examined the defendant before plea was taken.   A hospital order for a period of twelve months was considered suitable for the defendant who suffered from psychosis with a history of polysubstance abuse.  Ms Ku asked the court to adopt such recommendation in lieu of imprisonment. 

15.As it has almost been six months since the two psychiatric reports were written, Ms Ku asked the court to adjourn the case for two updated psychiatric reports.  I acceded to Ms Ku’s request.  I adjourned the case to call for two psychiatric reports on the defendant and reminded the defendant that (in view of the seriousness of the offence he was facing)  there should be no inference that a hospital order, if recommended, is going to be the sentence he would receive.

SENTENCE

16.The two psychiatrists who have examined the defendant on this occasion also examined him in January and May 2022.  Ms Ku confirmed that the defendant agreed with the content of the two reports.  The two psychiatric reports revealed that the defendant suffered from psychosis with a history of polysubstance abuse.  In view of the defendant’s long duration of untreated psychosis, limited insight and potential risk of harming others in the community under psychotic influence, further inpatient treatment is required[1]. Therefore, both psychiatrists recommended a hospital order for a period of twelve months.

17.The term of hospital order recommended for the defendant, ie a period of twelve months, is quite substantial in length indicating that a considerable psychiatric treatment is required. 

18.I am aware of the gravity of burglary offence.  There is a well settled sentencing guideline for burglary of non-domestic premises. According to the guideline, the starting point for a single burglary of non-domestic premises where there are no aggravating or mitigating features is 2 ½ years’ (30 months)  imprisonment (Attorney General v Lui Kam Chi [1993] 1 HKC 215).

19.Given the defendant’s repeated offences of the same charge, higher starting point with an enhancement of 3 months should be considered.  Apart from that, I find there were no aggravating features in the commission of the offences.  The defendant committed the offence alone.  There was no sophisticated planning nor the use of any equipment to gain entry into the premises.  There was no direct confrontation with the occupiers and no one was injured.  The defendant co-operated with the police upon his arrest and made full and frank confessions.

20.According to the facts admitted for charge 2, the subject door of Shop 2 usually remained open for customers to use the washrooms.  I consider it is an opportunistic case, a lower starting point for charge 2, ie 18 months, should be adopted.  As for charge 3, the defendant was caught red handed, the iPhone of Shop 3 was recovered.

21.The defendant pleaded guilty, thereby expressing his remorse.  Upon the defendant’s guilty plea, one-third sentencing discount is warranted for both charge i.e. a starting point of 21 (18 + 3)  months’ imprisonment for charge 2 and 33 (30 + 3)  months’ imprisonment for charge 3, after ⅓ discount, 14 months’ imprisonment for charge 2 and 22 months’ imprisonment for charge 3. By applying the totality principle, 6 months of charge 2 to run consecutive to charge 3, making a total sentence of 28 months’ imprisonment. As such, the defendant would have received a term of imprisonment of 28 months, after the application of totality principle, if the court were to impose a custodial sentence on the defendant for the two charges.

22.I have also considered that the defendant has already been remanded for almost 15 months since the day of arrest on 19 July 2021.  Therefore, if a 12 months’ hospital order is adopted, the total detention period for the defendant would be 27 months.  Ms Ku informed the court that the defendant was well aware of the situation and invited the court to take the recommendation of hospital order as it would be beneficial to him.

23.The court could have passed a sentence of imprisonment and made a recommendation that the defendant obtain treatment in a mental institution R v Lam Yuet Siu [1993] 2 HKC 272. 

24.Nevertheless, it is clear from the two psychiatric reports that the defendant is presently in need of inpatient treatment by way of a hospital order.  The report revealed if the mental condition remained untreated, there is high violent propensity, especially towards the defendant’s family[2]. Prison, therefore, would not provide the help that the defendant need.

25.Having considered all the circumstances, I am of the view that it is in the defendant’s best interest as well as the community’s to pass a hospital order in accordance with the recommendations of the two psychiatrists.  Therefore, for charges 2 and 3, I sentence the defendant to detention under a Hospital Order in Siu Lam Psychiatric Centre for 12 months.