HKSAR v. WONG CHI SHING

DCCC 571/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 571 OF 2013

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge of burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap.210.

2.  The particulars are that a restaurant in Tsuen Wan, which operated on a 24-hour basis, had a rear entrance leading to its kitchen and its staff changing room.  Obviously, only staff are allowed to enter through the rear entrance.

3.  On 25 January 2013 a police officer on duty in the vicinity of that restaurant saw the defendant acting suspiciously.  This was in the early hours of the morning at about 3.30 am.  He put the defendant under observation and followed him.  This officer saw the defendant enter the rear entrance and extend his arm into the staff changing room, as if searching for something.  He then turned and left the rear entrance. 

4.  Not far from that exit, the police officer stopped the defendant.  The defendant admitted to the police officer that he was not a member of staff and had entered the rear entrance to see if there was anything worth stealing.  He admitted that he found a jacket and bag hanging in the staff room and had gone through them but found nothing valuable to steal. This defendant made a full admission to the officer.

5.  The defendant is a 48-year-old man, presently unemployed and living on public assistance.  I have been told that he has a grownup daughter who lives apart.  Presently, he lives with a girlfriend.  His girlfriend is here in court today to support him.  I have been told that she is not of good health, suffering from terminal cancer and, from what I can see, she is of very poor pallor, poor colour.

6.  It was explained to me that the defendant on that evening was unhappy because of his girlfriend’s illness, had been drinking and wandered around and committed this offence without any pre-planning.

7.  The defendant is not a man of clear record.  He has many previous convictions.  Those include gambling offences, drug offences and since 2010 he has been convicted of four offences relating to dishonesty.

8.  His best mitigation today is his plea of guilty and the fact he fully cooperated with the police.

9.  I do accept it was an opportunistic offence.

10.  I have been given a psychiatrist’s report dated August 2013.  The report does give the defendant’s history and in 2005 he was diagnosed with suffering from drug-induced psychotic disorder.  This was due to years of drug abuse.  The report says that he had quit all illicit drug use after 2006.  However, he has continued to receive psychiatric treatment and is on medication.  When seen in May 2013 after his last conviction, he was calm and not suffering from any psychotic symptoms or signs and the report confirms he is still taking prescribed medication.

11.  In my view, it was not necessary to call for any further medical reports.  This report sufficed.

12.  There are guidelines for burglaries of non-domestic premises.  Normally the court would adopt a 2 year and 6 month starting point where there were no aggravating or mitigating factors.

13.  I do take into account that, despite the defendant’s poor criminal record, there is no evidence he is a burglar.  There is no history of burglary.

14.  I accept that this is a technical burglary and was opportunistic, certainly not planned nor sophisticated.

15.  Defendant, please stand up.

16.  Having heard mitigation, having considered the factors I have just referred to and the defendant’s plea and background, I will reduce the normal starting point to reflect these considerations.

17.  I take a starting point of 18 months.

18.  The defendant is entitled to a discount of one-third for his plea.

19.  This defendant is sentenced to this offence to 1 year imprisonment.

20.  Defendant, I have just sentenced you to 1 year’ imprisonment.

21.  You are presently serving a sentence of 6 months for KCCC 1897/13.  Today’s sentence will run consecutively to the Kowloon City sentence.  That means this sentence will run when that sentence is concluded.