HKSAR v. Cheung Kam Wing

DCCC 67/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.67 OF 2013

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of burglary[1].

Facts

2.At around 10:55pm on 15^th November 2012, a passerby spotted the defendant climbing onto the wire mesh railing of a building on Shanghai Street, Mongkok. Two Police officers on patrol nearby were notified. They saw that the defendant had climbed onto a canopy and then into a balcony that was enclosed by walls and had a roof on the 1^st floor of the building.

3.The defendant climbed back out from the balcony after a while, jumped onto the canopy and tried to leave, whereupon one of the Police officers shouted for him to stop. The defendant ignored the order, jumped into the rear lane and fled towards Soy Street.

4.The defendant was eventually intercepted by one of the Police officers at number 15 Soy Street. The defendant was searched and two ladies’ briefs were found inside his left front trousers pocket. The defendant was then arrested and cautioned for burglary.

5.Under caution, the defendant admitted that he had a fetish for ladies’ briefs, that he stole the briefs found on him after entering the balcony and that he ran because he got scared. The owner of the briefs was found and confirmed that they were bought at $50 each and that they were on the clothesline at the balcony before they were stolen.

Previous convictions

6.The defendant is of previously clear record.

Mitigation

7.The defendant is 49 years old. He worked as a sou chef at the time of the offence, employed by the D & J Shanghai Restaurant. The restaurant closed down and the defendant lost his job on 20^th February 2013.

8.The defendant was however able to quickly find a similar job on 5^th March 2013 at a different branch of the restaurant, earning $13,500 net per month. I was told that the defendant had quit this job in April as a result of this case because he would have to take a lot of leave days and he did not want to trouble his employers, who told the defendant that he will be welcomed back should his sentence allows.

9.Ms. Chan for the defendant cited the case of HKSAR v Chow Chak Man, CACC 447/1998 and requested that a community service order report be prepared on the defendant. In order to ascertain the psychological well-being of the defendant, a psychologist report was also ordered. Although community service was eventually not recommended, the defendant does not show any sign of sexual deviancy or psychopathology according to the clinical psychologist Ms. Lui.

10.Ms. Chan then cited the Court of Appeal case of HKSAR v Cheung To Ming CACC 406/2005 where the appellant entered the burgled premises via the main door that was left open and stole, cooked and ate 2 packets of instant noodles having entered Hong Kong illegally. The Court of Appeal applied the case of HKSAR v Sim Ka-wing, CACC 450/2000, found the circumstances in their case to be “most unusual” and considered that the only safe basis to deal with the appellant was to regard him as a “sneak thief”. On this basis, the Court considered that an 18-month starting point instead of the usual 30 months for burglary of a non-domestic premises would be appropriate.

11.I find that the facts in that case are indeed most unusual and bear no resemblance to our present case at all. In our case, the defendant did not just walk into a premises via a door left open. He had to first climb on to the wire mesh railing of the building, then onto a canopy protruding from the building and then entered the balcony on the 1^st floor of the building. Having stolen the briefs, the defendant then had to climb out from the balcony, jump back on to the canopy in order to leave.

12.Photographs of the burgled premises show that the defendant had to walk across the balcony to where the washing lines were in order to take the briefs. He could not have just reached in over the wall, which was one floor above ground level, to grab the briefs. I find that what happened must have been that he saw the briefs, decided to climb up into the balcony to get them and did climb up to enter into the balcony. What the defendant did was not a simple walk in burglary.

13.Ms. Chan then cited 2 District Court cases in support of her asking for either a suspended sentence or a probation order to be imposed on the defendant. The cases are HKSAR v Law Tsin Hung DCCC 1252/2010 and HKSAR v Ng Tin Ho and another, DCCC 824/2011.

14.The former case involved a burglary which arose out of a family dispute while the latter involved an 18 year old mentally retarded person as a defendant. I find the facts in these 2 cases not similar to ours at all and are not relevant in considering the sentence in our present case.

Sentence

15.The usual sentence for burglary of a domestic premises is that of 3 years’ imprisonment in the absence of aggravating or mitigating factors. Burglary is not an excepted offence.

16.There is no indication of professional planning, organization or execution, nor was the burglary targeted at the elderly, the disabled or the sick, no force is used or threatened and there is no evidence of any traumatic effect on the victim. The value of the property stolen is only $100 and recovered.

17.The burglary however did happen at night and at a time when it is more likely that the premises was occupied. I was told by the prosecution, and confirmed by the defence, that the premises was in fact occupied when the defendant entered the balcony.

18.Result of psychological testing and clinical interview conducted on the defendant did not indicate any sign of sexual deviancy or psychopathology. The defendant appears to have a drinking problem and would benefit from assistance on how to handle stress. Such help will be available through the Correctional Service during the defendant’s detention.

19.Ms. Chan for the defendant invited me to impose a Community Service Order on the defendant. She submitted that having a fetish interest is not an offence. I find however that given the nature and circumstances of the commission of the offence I do not consider a Community Service Order appropriate.

20.Ms. Chan also submitted that her client’s case involved exceptional circumstances. I find that I have to disagree. As pointed out above when referring to the case of the sneak thief, although there was no forced entry, what the defendant did was nothing like a chance entry through an open door. He climbed over a wall to get into a balcony to get to the briefs of the occupant who was at that time inside the premises. I find that to be more disturbing for the occupant of the premises to know that her briefs instead of, say jewellery had been stolen. It is far more personal. The only thing out of the ordinary is the nature of the property stolen, which is by no means an exceptional circumstance.

21.I find that the fact that the defendant has a clear record and the fact that he has been holding a steady job matters I should take into consideration. Otherwise than that, I find that there are no special reasons to depart from the usual sentence, I will adopt an initial starting point of 36 months’ imprisonment, reducing it by 3 months in reflection of the said 2 factors, and then further reducing the resulting sentence by one-third in recognition of the defendant’s guilty plea. The defendant is therefore sentenced to 22 months’ imprisonment.

[1] Contrary to s.11(1)(b) and (4) of the Theft Ordinance, Cap.210