HKSAR v. Chan Yiu Kai

DCCC147/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 147 OF 2012

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Reasons for Sentence

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1.In this case the defendant faced four counts of burglary which took place between 21 August and 21 November 2011.

2.All of these burglaries involved domestic premises.  The facts are quite similar.  The defendant employed the same method by pretending that he was a plumber or a repair man, gaining permission of the occupier to enter their homes and steal there from. He pleaded guilty to all four counts and was convicted upon his plea and admission of facts. 

1st Charge

3.On 31 August 2011, the defendant gained the permission of the occupier, a 59 year old lady and entered a flat in To Kwa Wan.  Using excuses to divert the occupier’s attention and even borrowing a screw driver from her as a tool to perpetuate the crime, he managed to steal cash $4,000 from the premises.

Charge 2

4.It took place on 19 September 2011.  At around noon the defendant pretended that he was there to carry out water and electricity maintenance work and managed to convince the sole occupier of a house in Tin Shiu Wai, a 69-year-old lady, to let him enter the premises. Again, after using various excuses to divert the attention of the occupier the defendant stole $2,800 in cash and an identity card from the handbag she placed on her bed.

Charge 3

5.It took place on 30 October 2011.  A 70-year-old gentleman was alone in his house in Yuen Long.  By pretending that he was there to inspect water, electricity and electricity installations, the defendant was allowed in where he prized open the drawer of the occupier’s wardrobe and stole $5,000 cash there from.

Charge 4

6.It took place on 21 November 2011.  The 76-year-old occupier of a tenement in Castle Peak Road allowed the defendant to enter into her flat in the belief that he was there to carry out water and electricity work.  While the occupier was attending to her chores the defendant prized open the locked drawers in the two bedrooms and stole one necklace, one watch, three wrist chains, cash RMB3,500 and cash of $1,900. The total value of the property stolen was HK$16,682.

7.On 28 November 2011 the defendant was arrested at the Lo Wu Control Point.  He had on him $5,400 cash Renminbi.

Sentencing Considerations

8.There are clear authorities for sentences in burglary cases involving domestic premises.  The normal starting point should be 36 months.  The present case is worse than most in that the defendant had committed four offences within a period of four months and had employed similar methods by taking advantage of the aged, infirm or gullible. 

9.In addition the defendant has an appalling criminal record.  At the time of the offence he was 36 years old but had already been involved in the criminal justice system for a total of 14 times in which there were 17 counts of burglary. The latest conviction was on 4 January 2010, when for a case of burglary he was sentenced to imprisonment for two years and 8 months.  I note that the facts of that particular case were similar to the present ones: after gaining the trust of an aged occupier of a domestic premises, he stole there from.  Judge Geiser treated it as an aggravating factor and adopted a higher than normal starting point of four years imprisonment.  Obviously the sentence order did not have the intended deterrent effect on the defendant.

Mitigations

10.I turn to consider the mitigating factors in this case.  First and foremost was the fact that the defendant pleaded guilty, and in line with the usual practice, the court will give him the usual discount.  In mitigation counsel for the defence told this court that the defendant suffered from mild grade mental retardation.  As a result I ordered a probation officer’s report and a psychiatric report to have a better understanding of his background.  The defendant’s mother has written a letter pleading for leniency on his behalf.  I have also received a letter from the Pastor of Hong Kong Christian Kung Sun Association Limited pleading for his case.

11.The letters supported the points raised by the defence: his filial piety and that he did not have an easy life in that his wife had passed away; his mother was aged and his father died recently.  On top of it is the fact that he suffers from mild grade mental retardation.

12.The relevant part parts of the psychiatric report read,

“Mental state examinations reveal the defendant to be calm and relevant and coherent speech. He was very evasive and inconsistent when speaking about forensic and drug abuse history..”

and

“..the defendant has personality problems and limited intelligence. His mental state is stable with no mood or psychotic symptoms.”

13.The most important thing is that he understood the charges brought against him.  I also note that his “limited intelligence” or “mild grade mental retardation” did not stop him from devising schemes to prey on the gullible and the aged. 

14.The probation officer set out the background which was similar to what the counsel for defence has drawn this court’s attention to.  I notice that the probation officer concluded at paragraph 11 with the following words:

“Despite the sentence of repeated imprisonment it would appear that he had learned a hard lesson and he resorted to commit such offences when facing financial hardship when being unemployed. The present offences reflected that accused, as a recidivist, had poor law abiding concept and consequential thinking and failed to control his impulse of committing the burglary offences shortly after his discharge from prison which appear to have become a deviant behavioural/criminal pattern when the accused was in the face of financial stringency or stress.”

15.It must be said here that while the court has all the sympathy for the defendant’s hard life and his predicament, there is no excuse for preying on the weak and the infirm.  And it is certainly not an excuse for repeating the same criminal behaviour again, again and again.  Any sympathy the court has for the defendant and any reason to exercise leniency on humanitarian grounds there maybe, the defendant has made full use of them to his best advantage in the past. He had exhausted them by his repeated offending.

16.The defendant’s limited intelligence, his doting mother, the fact that his father and his wife passed away and that he suffers from financial difficulties are not valid mitigating reasons.  The defendant might suffer from a mild grade retardation, he certainly was bright enough to plan and scheme to secure the confidence of the others and committed offences in their houses. 

17.Having considered the aggravating factors in the present case I decide to adopt a higher starting point of 4 years for each of the counts.  Since the defendant pleaded guilty he would be entitled to a one-third reduction, the sentence for each offence is therefore reduced to 32 months.  Since the defendant has pleaded guilty to all four counts in one go, the court has to consider the Totality Principle.  So in respect of the 2nd, 3rd and the 4th Count I order three months to run consecutive to the others. In total the defendant is to serve a term of imprisonment for 41 months. 

18.I have again reviewed other mitigating factors put forward by defence counsel, the probation officer and letters written on his behalf, I do not find any other additional factor which might justify my exercise of further leniency.  In all the defendant is to serve 41 months’ imprisonment.