HKSAR v. Cheung Wing Kin

DCCC 546/2023

[2024] HKDC 398

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 546 OF 2023

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REASONS FOR SENTENCE

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INTRODUCTION

1.The defendant is convicted upon his own guilty plea of two charges of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210, Laws of Hong Kong.

2.Charges 1 and 2 were committed on 15 May 2022 and 30 November 2022 respectively.  Both charges were committed in the same building where the defendant lived, but on different floors.

FACTS

Charge 1

3.At the material time, madam WANG (“PW1”)  resided alone at Room 701, Ping Chun House, Ping Tin Estate, Lam Tin, Kwun Tong, Kowloon (“Room 701”).

4.At around 12 noon on 15 May 2022, PW1 left Room 701.  At about 00:50 am on 16 May 2022 when PW1 returned to Room 701, she found that her premises was ransacked.  The following items totally worth around HK$1,100 went missing:

(i)  Cash in the sum of around HK$800;

(ii)  Ornament of rabbit figure worth around HK$150; and

(iii)  Ornament of chicken figure worth around HK$150.

Charge 2

5.At the material time, madam BAI (“PW2”)  resided alone at Room 1511, Ping Chun House, Ping Tin Estate, Lam Tin, Kwun Tong, Kowloon (“Room 1511”).

6.At around 5:50 pm on 30 November 2022, PW2 left Room 1511.  She locked the metal grille but left the wooden door ajar.  At around 7:00 pm on the same day, PW2 returned to Room 1511 and found that (i)  her mobile phone (“S/ppty9”)  placed on a table and (ii)  a wooden drawer (“Drawer”)  containing the following items went missing:

(i)  Cash of HK$180,000 (“S/ppty2”);

(ii)  Cash of RMB300 (“S/ppty3”);

(iii)  One gold ring worth around HK$3,500 (“S/ppty4”);

(iv)  One gold ring worth around HK$3,500 (“S/ppty5”);

(v)  One platinum necklace worth around HK$3,000 (“S/ppty6”);

(vi)  One gold necklace worth around HK$2,500 (“S/ppty7”);

(vii)  One pair of gold earrings worth around HK$1,500 (“S/ppty8”); and

(viii)  PW2’s belongings and documents such as one bank passbook, Octopus Cards, receipts and membership cards etc.

7.A chopper (“Chopper”)  and a peeler (“Peeler”)  belonging to PW2 were left at scene.  Case was reported.

Arrest and Caution

8.At around 11:23 am on 1 December 2022, police officers conducted a raid at the defendant’s residence at Room 416, Ping Chun House, Ping Tin Estate, Lam Tin, Kwun Tong, Kowloon (“Room 416”)  and found the following items:-

(i)  The Drawer containing S/ppty9 and PW2’s personal belongings such as bank passbook and Octopus cards; and

(ii)  A safe (“Safe”)  underneath the defendant’s bed. The defendant unlocked the Safe and the following items belonging to PW2 were found: cash in the sum of HK$20,055 and RMB172.30, S/ppty4, 6, 7 and 8.

9.At about 11:55 am on 1 December 2022, the defendant was arrested.  Under caution, he admitted having used the Chopper to prize open the Drawer in Room 1511 and stole the gold ornaments contained therein as he had no money.（“唔關我屋企人事，係我無錢駛，先用菜刀撬開15樓個單位入面個櫃桶，之後偷咗入面啲金器。”）

10.Upon further enquiry, the defendant admitted having burgled Room 701 in May 2022 and stolen cash of around HK$1,000.（“阿Sir，其實今年5月依度7樓嗰單老爆都係我做嘅，偷咗大概一千蚊。”）

Three VRIs

11.During the first cautioned video-recorded interview conducted with the defendant on 1 December 2022 (the 1^st VRI), the defendant admitted, inter alia, the followings:

(i)  He was a warehouse worker of a company known as “JPS”. He lived at Room 416 with his mother, his younger brother and his nephew.

(ii)  He burgled Room 1511 as he had no money and he tried to get money out of other premises. At around 5:30 pm on 30 November 2022, he left his home and took the staircase to look for target premises in Ping Chun House. At around 6 pm on 30 November 2022, he reached Room 1511 and found that the wooden door was left ajar and the metal gate locked but no one was in Room 1511. He inserted his left arm through the gap of the metal grille and unlocked the metal grille from outside.

(iii)  After he had entered Room 1511, he found the Drawer locked in the living room. He believed there were valuables inside. He took the Peeler from the kitchen to prize open the Drawer but in vain. He then used the Chopper to prize open the Drawer. Inside the Drawer, he found cash and gold ornaments such as rings, earrings and necklaces. He took the Drawer back to his home at Room 416 via staircase as he was afraid to be captured by CCTV in the lift.

(iv)  There was cash of around HK$160,000 to HK$170,000 inside the Drawer. He had spent around HK$130,000 to repay his debt to unidentified moneylenders and he lost the remaining HK$40,000 in gambling. He exchanged RMB300 into Hong Kong dollars and spent the money. He put all the gold ornaments including rings, earrings and necklaces in the Safe. He put S/ppty9 in the Drawer.

(v)  Various exhibits were shown to the defendant who confirmed as follows:

(a)  He had used the Peeler and the Chopper in Room 1511 to prize open the Drawer;

(b)  He had taken away the Drawer and put it in his younger brother's bedroom because he was worried the police might find it;

(c)  He had stolen S/ppty9;

(d)  The seized banknotes in the sum of HK$20,055 were cash stolen from Room 1511; and

(e)  The seized RMB172.30, S/ppty4, 6, 7 and 8 were stolen from Room 1511.

(vi)  When asked again about the cash of around HK$160,000 to HK$170,000 previously mentioned, the defendant changed his version and said he had used around HK$130,000 to repay debt and had lost around HK$20,000 in gambling and so there was HK$20,055 in the Safe.

12.During the second cautioned video-recorded interview conducted with the defendant on 1 December 2022 (the 2^nd VRI), the defendant admitted, inter alia, the followings:

(i)  At around 12 noon on 15 May 2022, he left his home and took the staircase to look for target premises. When he reached Room 701, he found the wooden door left ajar, the meta grille closed, and no one was inside Room 701. He inserted his left arm through the gap of the metal grille and unlocked the metal grille from outside.

(ii)   After he had entered Room 701, he saw that there was around HK$800 on the table in the living room. He took away the cash and two metal ornaments of chicken and rabbit figures and then left. He took the staircase back to his home as he did not want to be captured by the lift’s CCTV.

(iii)  He had spent the HK$800 he stole from Room 701 and thrown away the two metal ornaments.

13.During the third cautioned video-recorded interview with the defendant on 2 December 2022 (the 3^rd VRI), the defendant admitted under caution, inter alia, the followings:

(i)  At about 9 pm on 30 November 2022, he went to his elder brother’s residence in So Uk Estate and gave HK$30,000 to his elder brother for his safekeeping. The defendant also gave HK$6,000 to his elder brother as a gift. The total amount of HK$36,000 was stolen from Room 1511.

(ii)  LEUNG Chun Kwan (“LEUNG”)  was the defendant’s supervisor of “JPS”. On 30 November 2022, he gave S/ppty5 to LEUNG as a debt repayment since the defendant owed LEUNG around HK$20,000 to HK$30,000. On 30 November 2022, the defendant also gave LEUNG HK$9,800 for a debt repayment and HK$2,000 as a gift as the defendant had a good relationship with LEUNG. The total amount of HK$11,800 was stolen from Room 1511.

DEFENDANT’S BACKGROUND AND PREVIOUS RECORD

14.The defendant was born in October 1989 and is now 34 years old.  He has received education up to Form 3 level.  He used to work as a warehouse worker and earned about HK$18,000 per month.  He is married but has separated with his wife since September 2021.

15.Prior to the commission of the present offences, the defendant had 8 previous convictions, out of which:

•  3 were theft sentenced in December 2008, December 2013 and March 2015 respectively;

•  2 were burglary sentenced in December 2013 and September 2015 respectively; and

•  1 was loitering sentenced in June 2011.

MITIGATION

16.It was submitted in mitigation, inter alia, that:

•  The defendant has been suffering from schizophrenia since 2011. At the material times, he heard voices telling him to commit the burglaries;

•  The defendant fully cooperated with the police after his arrest. All the evidence against him in respect of Charge 1 entirely came from his own admissions;

•  He committed the offences in an attempt to pay off his debts resulting from gambling;

•  The defendant acted alone and the offences were not carefully planned or skillfully executed. No tools were used in the commission of the burglary at Room 701. He did not bring any tools to commit the burglary at Room 1511, although he used the Chopper and the Peeler found in Room 1511 to prize open the Drawer; and

•  Both burglaries were committed during daytime when no one was inside. No one was put in fear.

17.Defence counsel referred me to:

•  HKSAR v Cheng Wai Kai CACC 338/2007 in which the Court of Appeal set out a number of aggravating factors for sentencing of burglary;

•  HKSAR v Chow Keung CACC 478/2006 in which the Court of Appeal adopted a starting point of 3.5 years for the second burglary as the Court of Appeal considered it more serious than the first burglary: the applicant (i)  entered the premises during the day when there was present a domestic helper; (ii)  was wearing a mask and (iii)  stole a considerable quantity of cash and jewellery to the value of about $162,000;

•  HKSAR v Lee Chun Lok and another DCCC 891/2022 in which a reduction in sentence of 6 months was given to D1 because the evidence against D1 primarily came from his own admissions;

•  HKSAR v Ma Ming [2013] 1 HKLRD 813 in which the Court of Appeal said in paragraph 32 of its judgment that “When dealing with individual cases and when considering the totality of the sentence, the court, in exercising its discretion, can take into account the fact that the frank confession of the defendant provides the only evidence which support the charge or charges and therefore make minor adjustments to the total sentence. To this we do not object”[1];

•  HKSAR v Chiu Peng, Richard [2002] 1 HKC 401 in which the Court of Appeal said in paragraph 16 of its judgment that “if an accused is suffering from mental illness which played a part in the commission of the offence, the court may properly allow a discount of sentence... as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind. He knew that it was wrong to commit the crime, but he did not appreciate that the commission was as serious as it was: the degree of culpability was thus lessened. Or, as in this case, the accused’s mental illness made him gullible and easily susceptible to persuasion by the perpetrator of the crime, reducing his responsibility for participating”; and

•  HKSAR v Chen Xuehui HCCC 19/2012 in which the court reduced the sentence where the defendant was found to show symptoms of mental illness at the time of offence.

SENTENCE

18.The usual starting point for the offence of burglary involving domestic premises is 3 years’ imprisonment in the absence of aggravating or mitigating factors.

19.In HKSAR v Cheng Wai Kai [2008] HKCU 932 in which the appellant was charged with four counts of burglary and one count of attempted burglary, Yeung JA (as he then was)  said:

“The starting point can be adjusted upwards if there are aggravating circumstances such as (1)  the offence is carefully planned and skilfully executed involving the use of heavy instruments or equipment; (2)  the offence is committed by two or more people; (3)  the offence targets at substantial premises and involves substantial properties; (4)  the offender is a professional burglar and not just an opportunist; (5)  the offender has previous convictions, particularly previous convictions of a similar nature, and (6)  the offender commits multiple offences.”

20.In the present case, I have the following observations:

•  Prior to the commission of the present offences, the defendant had 2 previous convictions of burglary and 3 previous convictions of theft;

•  He lived in the same building but on a floor different from Room 701 or Room 1511. His admission that he took the staircase to look for the target premises so as to avoid his images being captured by the CCTV of the elevators of Ping Chun House shows that he was not merely an opportunistic burglar;

•  The value of the properties stolen in Charge 2 was substantial, and most of it could not be recovered; and

•  The defendant committed two offences of burglary in this case.

21.Regarding Mr LEUNG’s submission that the defendant’s commission of the present offences “is likely related to D’s schizophrenia”, it is noted from the letter dated 26 September 2023 from the Hospital Authority that the defendant was known to the mental health service since 2011 and was diagnosed to have schizophrenia.  It was also stated in the Hospital Authority’s letter that the defendant received regular follow-up from Yung Fung Shee Psychiatric Clinic with regular psychotropic medications.  On the basis that the defendant attended follow-up regularly and received medications regularly, and in the absence of evidence[2] showing that the defendant was indeed suffering from any mental disorder at the time of the offences, I refuse to accept that the defendant’s culpability was lessened on the ground that he committed the present offences under an abnormal state of mind.  The submission that the defendant heard voices telling him to commit burglary is neither here nor there – his hearing voices telling him to commit burglary does not mean he was suffering from any mental disorder.  His admission that he took the staircase to look for the target premises so as to avoid his images being captured by the CCTV of the elevators of Ping Chun House shows that he knew what he was doing.  He also admitted in the 1^st VRI that he committed the burglary at Room 1511 because he had no money and he tried to get money.  The way he admitted how he committed the burglary at Room 701 in the 2^nd VRI also shows that he knew what he was doing.  In the 3^rd VRI, the defendant admitted that he repaid his debts to his elder brother and LEUNG soon after the commission of the burglary in Charge 2. It shows that he was not suffering from any abnormal state of mind.  All in all, his admissions in the 1^st, 2^nd and 3^rd VRIs do not show that he committed the offences under an abnormal state of mind.

22.For Charge 1, I adopt 3 years’ imprisonment as the starting point.  The defendant had previous convictions of burglary prior to commission of Charge 1 is an aggravating factor which justifies an increase of 3 months in sentence.  On the other hand, I accept that without his admission, the prosecution may not have sufficient evidence to lay prosecution against him on Charge 1.  This is a mitigating factor justifying a reduction of 3 months in sentence.  The addition of 3 months and then the reduction of 3 months put him back to 3 years’ imprisonment.  I then give him one-third discount for his timely indication of guilty plea.  There being no further valid mitigating factors justifying further reduction in sentence, I impose 2 years’ imprisonment on the defendant for Charge 1.

23.For Charge 2, similarly I adopt 3 years’ imprisonment as the starting point.  As the defendant had previous convictions of burglary prior to this case, that he committed multiple offences in this case, the value of stolen properties was substantial and most of them could not be recovered, I would increase the sentence by 6 months.  The sentence for Charge 2 is increased to 3 years and 6 months’ imprisonment.  One-third discount is given to the defendant for his timely indication of guilty plea.  There being no further valid mitigating factor justifying further reduction in sentence, the sentence for Charge 2 is 28 months’ imprisonment.

24.In Chow Keung, the Court of Appeal ordered one and a half years’ imprisonment (out of 28 months’ imprisonment)  in the second charge of burglary to run consecutively to 2 years’ imprisonment imposed in the first charge of burglary, thus making a total of 3 years and 6 months’ imprisonment for the two burglaries.  In this connection, the Court of Appeal remarked that the applicant in Chow Keung was a repeat offender and the offences were committed not very long after his release for a previous offence of some seriousness.  I am of the view that the background of the defendant in the present case is slightly better than the applicant in Chow Keung.

25.As such, on totality, I order 15 months in Charge 2 to run consecutively with 2 years in Charge 1, thus making a total of 3 years and 3 months’ imprisonment.