HKSAR v. LEE CHAU WAI

DCCC 211/2019

[2019] HKDC 1363

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 211 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant faced two burglary (charges 2 and 5) and two attempted burglary (charges 1 and 3) charges. He pleaded guilty to charges 1, 2, 3 and 5, admitted to the summary of facts and was duly convicted.

2.  Upon his convictions, charge 4 (burglary) was ordered to be kept on file, not to be proceeded with against the defendant without the leave of court.

Summary of facts

3.  The defendant committed charges 1, 2, 3 and 5 on four different days in November and December 2018 on four different premises.  All the premises were in Tai Po.

Charge 1: Attempted burglary (non-domestic premises)

4.  At around 11:30 pm on 1 November, the defendant used an electric drill to try to drill open the lock on the iron gate of the rear entrance of a shoe shop situated on the ground floor of Tai Man House, Tai Yuen Estate.

5.  The sound woke Mr Yip who happened to be sleeping inside the shop that night.  He got up and banged on the gate from the inside, which probably scared the defendant away, and the drilling stopped.  Nothing was stolen but the lock was damaged and cost $2,000 to replace.

Charge 2: Burglary (non-domestic premises)

6.  One day later, on the morning of 3 November, the lock on the glass door of a billiard club situated at the lower ground floor of No 2 On Cheung Road was found to have been damaged, with part of it discarded on the ground.  Mr Tse, the manager, had to use a handsaw to saw away the remains of the lock in order to open the door to enter the club.  

7.  Some tiles of the ventilation shaft were moved and $3,860 inside an unlocked drawer was found to be missing.  It cost $500 to repair the front door and $100 to replace the tiles.  

Charge 3: Attempted burglary (non-domestic premises)

8.  Three days later, at around 00:58 am on 6 November, the defendant was spotted by patrolling Police officers acting suspiciously near Tai Yuen Food Court in Tai Yuen Estate.  

9.  The officers kept him under observation.  About 2 minutes later, they saw the defendant took out an electric drill from the bag that he was carrying and started to drill at the lock on the front door of one of the restaurants.

10.  The defendant stopped after about 15 to 20 seconds and the Police officers went up to intercept him.  The defendant was arrested and cautioned.  He claimed that he was just testing whether his drill was working.  

11.  The defendant was also subsequently arrested for the attempted burglary of the shoe shop, and the burglary of the billiard club.  The defendant denied having been to either of the premises.  

12.  The defendant was granted bail after his arrest on 6 November.

Charge 5: Burglary (domestic premises)

13.  On 18 December, the defendant entered the old people’s home situated on the second floor of Tai Po Building, 26-50 Kwong Fuk Road, and stole a mobile phone from one of the residents.

14.  The defendant gained entry via the front door, which was usually unlocked for easy access.  The phone was taken while its owner, Mr Lee, left it on the shelf when he went to the bathroom.  Mr Lee actually saw the defendant walking away from his bed and took the lift to leave while on his way back from the bathroom and before finding that his phone was missing.

15.  The stolen phone was recovered upon search of the defendant’s residence later on.  

16.  The defendant showed up at the old people’s home again at 5:30 am the next day.  The staff found him suspicious and so they intercepted him and called the Police.  Mr Lee positively identified the defendant as the person whom he saw walking away the day before.  

17.  Under caution, the defendant admitted to entering the old people’s home as an intruder and stole Mr Lee’s phone.  

Previous conviction

18.  The defendant is of previously clear record.  He did, however, commit the burglary in charge 5 whilst he was on bail for the previous 3 offences he committed in November.  

Mitigation

19.  The defendant is 30, single and lives with his parents and younger sister.  He was educated in Hong Kong up to secondary level.  After finishing school, he had worked as a carpenter and a transportation worker.  At the time of arrest, he was working as a part-time caregiver at the old people’s home where his mother stays at, earning about $2,000 per month.

20.  The defendant’s mother suffers from psychiatric illness, and the defendant has been able to look after her while working there.

21.  The defendant, his father and pastor wrote in mitigation.  In gist, they speak to the defendant being a fine person who loves and looks after his parents and ask for leniency.

22.  Mr Fong for the defendant pointed out that the defendant had acted alone, that he is not a professional burglar, that no one had been injured in any of the offences and the defendant did not incur significant losses on the burgled premises.  

23.  Most importantly, Mr Fong relies on the case of HKSAR v Chiu Peng [2001] 1 HKLRD 185 to support his plea in mitigation that the defendant deserves a lesser sentence because of his mental illness.  More precisely, the sentencing principle propounded is that where an accused was suffering from a mental illness which played a part in the commission of the offence, the court could properly allow a discount of sentence to reflect his diminished criminality or culpability.

24.  There the Applicant suffered from a mood disorder and was in a major depressive episode at the time of the offence.  It was found that his illness made him confused, indecisive and credulous.  His reasoning was muddled and he was highly susceptible to persuasion by others.  It was under this condition that the Applicant had committed the theft of $16 million.  It was on this basis that a discount was afforded.

Sentence

25.  The maximum sentence for burglary, and attempted burglary, on conviction upon indictment is imprisonment for 14 years.

26.  It is trite law^[1] that the starting points for burglary of a non-domestic premises and domestic premises are 30 and 36 months respectively.  

27.  Mr Fong for the defendant accepts that for sentencing purpose, the old people’s home should be regarded as a domestic premises.  

28.  Given the defendant’s mental illness as disclosed in his mitigation, two psychiatric reports were ordered to be prepared on the defendant to assist in sentencing.  

Reports

29.  The defendant was previously assessed by an education psychologist as someone of limited intelligence.  He did not finish his secondary schooling, but did complete a two-year carpentry course at the Vocational Training Centre. He worked as a carpenter until he was 18, but then changed jobs thereafter.  As mentioned above, he was working at an old people’s home 6 months before his remand in the present case.  

30.  The defendant was diagnosed as suffering from psychosis in 2013 and was referred to a psychiatric outpatient clinic for follow-up treatment, which the defendant had failed to attend.  

31.  He was admitted to Tai Po Hospital from April to June 2017 for paranoid ideation.  He was diagnosed to suffer from schizophrenia on that occasion and was prescribed anti-psychotic medication.  His condition improved and was discharged home to help take care of his mother, who also suffers from mental illness.  The defendant attended regular follow-up treatment thereafter and has been in a stable mental condition.

32.  It is the finding of both psychiatrists that although the defendant was diagnosed as suffering from some form of mental illness, he has been in remission.  According to Dr Lui’s report, the defendant was noted to be in a stable mental condition when he last attended the outpatient clinic at the Alice Ho Nethersole Hospital for follow-up treatment on 27 November 2018.  This is 26 days after the defendant’s commission of charge 1, and 21 days before his commission of charge 5.

Sentence

33.  The defendant had committed the offence in charges 1 and 3 with the use of an electric drill.  It is obvious that he must have given some thought as to how to go about burgling the premises, which demonstrated premeditation.  The use of the drill to drill open the lock was his chosen method of operation.

34.  Even if the defendant was suffering from psychiatric illness, he must have had sufficient control over his mind to be able to think in advance and to be rational enough to bring the drill along.  This deduction is supported by the psychiatrists’ finding that the defendant has been in remission and that as at 27 November 2018, his mental condition was stable.

35.  I must, however, not lose sight of the fact that the defendant was of previously clear record when he suddenly went on this burglary spree.

36.  In relation to the attempted burglary charge 2, although no one saw the use of a drill, judging from the damaged lock, it can be inferred that some kind of tool must have been employed by the defendant as well in the commission of this offence.

37.  As for charge 5, the defendant had entered an old people’s home to steal. Since it is an old people’s home, it would have been occupied 24 hours a day.  The risk of confrontation between the defendant and the occupants was always high.  In fact, the defendant did come face to face with the victim of charge 5.  Fortunately, since the victim did not know that the defendant had stolen his phone at the time, no such confrontation resulted.

Starting points

38.  I will follow the guideline sentences and adopt starting points of 30 months’ imprisonment for charges 1, 2 and 3, and 36 month’s imprisonment for charge 5.

Charge 5: enhancement of sentence

39.  The defendant committed charge 5 whilst he was on bail for the earlier three offences.  This is an aggravating factor and for this I will enhance the sentence of charge 5 by 3 months, leading to a sentence of 39 months’ imprisonment.  

40.  The defendant had entered timely plea and is given the full one-third discount, leading to sentences of 20 months for charges 1, 2 and 3, and 26 months for charge 5 after plea.  

Totality

41.  Having read the psychiatrist reports, I find that the defendant’s limited intelligence, mental illness, and the fact that his mother also suffered psychiatric illness must be taken into account when deciding on the appropriate sentence.

42.  Applying the principle of totality, I will order that 2 months of the sentences in charges 1, 2 and 3 be served consecutively to the sentence in charge 5, the balance concurrently.  

43.  The final total sentence for the 4 charges is, therefore, 32 months’ imprisonment.  

44.  The defendant is advised to continue with his medication and treatment, if required, for his psychiatric illness while serving his sentence.  

 

 

( Douglas T H Yau ) District Judge