HKSAR v. Au Wan Hong

DCCC1258/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1258 OF 2011

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to three offences of burglary, each contrary to section 11(1)(b) & (4) of the Theft Ordinance, Cap. 210.

2.You admitted the brief facts and I convicted you.  Briefly, those facts were as follows.

Charge 1

3.PW1 is the proprietor of a spectacles shop at the 1st Floor, 3 Queen Victoria Street, Central.  On the evening of 13 August this year he left the shop secured.  At about 8.58 am the next morning he was informed by the security company that the alarm was activated.   He returned to find the wooden door prized, no sign of ransacking and nothing missing. 

Charge 2

4.PW2 is the proprietor of a foot massage shop at the 1st floor, 311 Des Voeux Road West, Western.  In the early hours of 18 August last she left the shop secured.  She returned at 9.20 pm on 19 August.  Her employee informed her that when she went to the shop at 12 noon that day, she found the door prized and the cashier counter ransacked, $550 was missing. 

Charge 3

5.PW3 is the proprietor of a foot massage shop at the 3rd floor, 12 Victoria Street(Queen Victoria Street?), Central.  On the evening of 20 August last he left it secured.  At about 7.44 am the next day, DSPC216 and his team saw you enter the building.  At about 7.58 am you were seen leaving.  Having confirmed that the shop had been burgled, you were intercepted by the police.  A search of your bag revealed $609.20 in coins, a key and a $10 note.  PW3 returned to the shop and identified the key as one placed at the cashier counter.  The door was broken and coins missing. 

6.Under caution you admitted burglary and theft of the coins.

7.In a cautioned interview you admitted kicking open the door of the first two shops and entering.  From the second shop you stole money to buy food.  You said it was about $500 and you had spent it. 

8.You admitted to 88 previous convictions, 67 of which were burglary and 3 attempted burglary.

9.On your behalf Mr Leung entered mitigation.  He told me that you are 63 years of age, single and a mild grade mentally retarded person.   I was referred to two psychiatric reports prepared for your appearance in the Magistrates’ Court.  Your IQ is gauged at 64.  Both reports agree that treatment is not appropriate.  You are considered fit and able to serve a prison sentence. 

10.Mr Leung then went on to describe the sad life that you had led, and I do acknowledge that is a sad life.  When you were about 2 years of age you were hit by a lorry leading to mental retardation.  At school you had to leave after P2 as you could not cope any longer.  Your only employment has been sheltered workshops.  You are in receipt of disability allowance of $1,000 per month.  I am told that you reside with your elder brother who cares for you. 

11.Mr Leung very fairly made the point that since 1967 you had spent 391 months in jail.  In respect of the offences themselves, Mr Leung said they were not planned, you were merely walking by the shops, all that was taken was a small amount of money, just over $1,000 and you were co-operative on arrest.  He asked me for leniency and mercy.

12.I turn now to the sentence.  This is indeed a sad case of an elderly man of retarded mentality with an appalling history of burglary.  The psychiatric reports are clear that there is no treatment available to you and it suggests that you are not able to differentiate between right and wrong.  Clearly, repeated prison sentences did nothing to deter you but merely kept you out of circulation away from temptation.  It is clear that given the nature of the charges and the circumstances that only imprisonment is appropriate in this case.

13.I take the standard starting point of 30 months on each, reduced to 20 months.  The total sentence will be served in the following way.

14.On Charge 1, you will go to prison for 20 months.  On Charge 2, you will go to prison for 20 months, 16 months of which will be concurrent and 4 months consecutive.  On Charge 3, you will go to prison for 20 months, concurrent.  In other words, you will serve a total of 2 years’ imprisonment.