HKSAR v. Tjhai Jiu Ho

DCCC 196/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 196 OF 2012

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REASONS FOR SENTENCE

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Charges and facts

1.The defendant faces two charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210, in relation to the same flower shop referred in the charge sheet which is situated in Fa Yuen Street, Mong Kok, Kowloon.  On 15 June 2012, she pleaded guilty to the 1^st charge but not guilty to the 2^nd charge.  As a result of a plea bargain, the prosecution accepted her plea and was contented to leave the 2^nd charge in the court’s file.

2.On 8 October 2011, PW1, the owner of the flower shop returned as usual but he found the buckle of the second drawer of the cabinet placed beneath the cash register damaged.  Cash in the total sum of HK$75,000 was missing.  The rolling gate of the flower shop was not damaged.  One month later, when PW1 finally managed to view the CCTV footage, he saw that it was her daughter-in-law, the defendant, who opened up the rolling gate with a key of the flower shop and entered into it without his authority between 5:34 am to 5:46 am.  A report was later made to the police.

3.On 13 December 2011, after arrest and caution, the defendant admitted the burglary.  During the house search of the defendant’s residence, she surrendered to the police the key she used to open the gate of the flower shop.

Personal background and mitigation put forward

4.The defendant is now 31 years old and has a clear record.  She was born in Indonesia and had completed secondary education there and left school at the age of 18.  She came to Hong Kong in 1999.  Through the introduction of friends, she knew and later married her husband and then worked for his family-run flower shop in early 2000.  According to what she told the Probation Officer in the Background Report, after the marriage, she soon found herself to have a difficult life and unhappy marriage.  She had to start working at 8:30 am and could only finish her daily work at midnight without having rest days.  She was given a very low salary.  Her parents-in-law did not treat her well and her husband was not concerned about her.  The defendant felt that she was exploited and in 2006, she had a surgical operation and she later ceased working at the flower shop and changed to work for her elder sister’s candy shop.  She later found out from PW1 that her husband was in fact a mentally deficient and she was shock and had developed into depression and was in need of psychiatric treatment since 2009.  As she found it unbearable to keep the status quo of her unhappy marriage, she decided to go for divorce and separated with her husband and lived alone in March 2010 and divorce proceedings are currently taking place.  She said that PW1, her father-in-law, had promised to pay her rent and to give her a lump-sum payment upon her application for divorce but he did not keep his promise.

5.Her counsel, Ms Amanda Li, submitted that the defendant committed the present offences because she was angry with PW1 and she was profoundly stressed out by her financial burden as she could not pay the rent and medical expenses and necessities.  She had the key to the flower shop as she had worked at the shop from 2000 to 2006.  After she stopped working in the flower shop, PW1 forgot to ask her to return the key for opening the gate.  She claimed that she hoped her break-in acts would compel PW1 to give her money and reminded him of the fact that the lump sum payment had not been made to her and to let PW1 know that she was not happy.  It was out of her expectation that PW1 subsequently made a report to police.  She regretted for what she had done and obviously she did not realize the serious consequences of her misdeed.

6.According to the medical report prepared by Dr Lai, psychiatrist of the defendant, she was diagnosed to be suffering from depressions with anxiety symptoms since 2009 and she has been on anti-depressant medication.  Dr Lai opined that the defendant was not in a stable mood condition when she committed the offence and it was likely that she made poor and irrational judgment on her decisions and actions as a result.  She was unable to appreciate the severity and consequences of what she did in the offence.

7.The defendant is very remorseful and she also has made a voluntary and full restitution of HK$75,000 to PW1on the last occasion and accordingly, I have already ordered a compensation of the same amount to be paid by her to PW1 forthwith.

8.Ms Li submitted that the present case is an exceptional case of burglary and asked the court to consider obtaining a Community Service Order (CSO) Report or imposing a suspended sentence.

9.The sentence was therefore adjourned for the purpose of obtaining a Background as well as CSO Reports.  I also remanded the defendant in Siu Lam Psychiatric Centre (“SLPC”) for the purpose of obtaining a psychiatric report to verify her condition.  I also made it clear to the defendant that the CSO Report was only requested by her counsel and it was not indicative of the fact that I was mindful of imposing a CSO in the end.  On the contrary, I warned her that the chances of immediate custodial sentence is still high in view of the seriousness of the matter.

Sentencing Considerations

10.The Background Report largely repeats what the defendant told her counsel to say in mitigation.  On the other hand, the probation officer had also talked to PW1 and her husband.  They said the defendant was a spendthrift and ill-tempered person with poor hygiene at home.  As far as the lump sum payment is concerned, PW1 said that the payment should only be made upon completion of the divorce proceedings.

11.The Psychiatric Report prepared by Dr Ho, a Visiting Psychiatrist from SLPC concludes that the defendant suffers from Recurrent Depressive Disorder.  Dr Ho is of the opinion that it was likely that she was suffering from a relapse of her Disorder at the time of offence as she stopped all her medications and did not attend any follow-up with Dr Lai.  However, Dr Ho also pointed out that as she was not actually seen by any psychiatrist at the material time, therefore it is not possible to make any conclusion as to whether she was really suffering from any relapse of her mental illness.

12.The CSO Report concludes that the defendant is a suitable candidate for CSO.

13.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal said that the proper starting point for non-domestic premises would be 2½ years’ imprisonment for a first offender of full age (as per Macdougall JA) as explained in HKSAR v Sim Ka-wing CACC450/2000.

14.The present case is a classic case of burglary of a commercial premises. Stripped of the matrimonial issues faced by the defendant and her relationship with PW1, the present case was committed by the defendant qua an ex-employee of the flower shop and involving as it were an element of breach of trust.  While I have much sympathy for the defendant, the court can never accept economic pressure as mitigation.  The presence of the medical evidence indicated that it was possible that she was suffering from Depressive Disorder thereby impairing her judgment at the time but even that was not conclusive as she did not see any psychiatrist at the time when she committed the offence.  However, in my judgment, even if that really was her case, in view of the seriousness of the charge, it would only operate to further reduction of an otherwise appropriate imprisonment term.

15.In HKSAR v Wan Ka-kit [2006] 3 HKLRD, the Court of Appeal held:-

“(2) Insofar as a community service order was concerned, the English Court of Appeal in R v Brown was not restricting the factors to be taken into account for the purposes of making a community service order to the six factors which they had mentioned. Nor was it insisting that all six factors should necessarily be present, although in the vast majority of cases where such an order was appropriate, most if not all, factors would be present. Further, even if a number of the factors existed, a judge should not slavishly make such an order; the gravity of the offence must be carefully considered. Other than in the most exceptional cases, a community service order would rarely be appropriate for burglary or attempted burglary. Here, there was nothing exceptional in D's case (R v Brown [1981] 3 Cr App R (S) 294 explained; HKSAR v Chow Chak Man & Another [1999] 3 HKLRD 37 not followed, HKSAR v Wong Yiu Kuen [2002] 1 HKLRD 712, HKSAR v Po Yan Chuen [2002] 2 HKC 172 considered; Secretary for Justice v Lin Min Ying & Another [2002] 2 HKLRD 823 applied). (See pp.17J-19I.) (“My emphasis”)

(3) Although, on occasion, a community service order was described as "not a soft option" to a custodial sentence, it was obviously a softer option. No one had sought a custodial sentence as opposed to a community service order. (See p.19E-F.)”

16.I do not consider that the case of the defendant is so exceptional.  The fact that the defendant kept the $75,000 to herself for so long without informing PW1 after the burglary, in my view, militated against her assertion that the stealing was only an attention-seeking behaviour of her to try to force PW1 to honour his earlier promise to pay her the lump sum payment.

17.However, given her clear record, her plea of guilty, the full restitution that have been made together with her psychiatric condition, I come to the conclusion that all these justified a reduction in sentence beyond the usual one-third discount.

Order

18.I take a usual starting point of 2½ years for the 1^st charge. I reduce it by one-third for her plea of guilty.  I further reduce the sentence by 5 months because of the full restitution and her psychiatric condition.  In other words, she was given an overall discount of 50% and the sentence is 15 months’ imprisonment.