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DCCC 541/2019
[2019] HKDC 1505
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 541 OF 2019
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| Present: |
Mr Alan M.S. Ng, counsel on fiat, for HKSAR
Miss Mandy Wong instructed by Lims Solicitors, assigned by the Director of Legal Aid, for the defendant |
| Offences: |
(1) Burglary (入屋犯法罪)
(2) Theft (盜竊罪) |
REASONS FOR SENTENCE
1. The defendant pleads guilty to one charge of burglary of the “Ordering Room” of the Haidilao Hot Pot restaurant, contrary to section 11 of the Theft Ordinance[1] and one charge of theft from the reception counter of the restaurant, contrary to section 9 of the Theft Ordinance.
2. Full particulars of the offences are set out in the facts admitted by the defendant today.
3. In summary the Haidilao Hot Pot restaurant which is located on the 2/F and 3/F of Kowloon Building, 555 Nathan Road, Kowloon is open 24 hours a day.
4. The reception counter of the restaurant is on the second floor and access to the third floor is by internal escalator. The “Ordering Room” is on the third floor of the restaurant and only staff of the restaurant were allowed access to the “Ordering Room”.
5. Photographs of the reception counter[2]and the “Ordering Room” [3]have been submitted to court.
Arrest
6. At about 11 a.m. on 18 April this year the police saw the defendant holding two black Apple iPads and acting furtively at the junction of Apliu Street and Pei Ho Street in Sham Shui Po. The police intercepted the defendant and discovered the iPads belonged to the Haidilao Hot Pot restaurant.
7. The police called the manager of the restaurant Ms Lin. Ms Lin immediately checked the CCTV recording and discovered that at about 4:49 that morning the defendant had entered the “Ordering Room”.
8. The defendant searched the drawers of a cabinet in the “Ordering Room” but was unable to find anything to steal (charge 1). The defendant then left the “Ordering Room” and went to the reception counter on the second floor where he took away the two iPads from a cabinet (charge 2).
9. The CCTV footage of the “Ordering Room” and the reception counter have been played in court.
10. In a video recorded interview, the defendant admitted stealing the two iPads and intended to sell them because he had no money.
11. Police enquiries revealed that the defendant had tried to sell the iPads to a hawker in Sham Shui Po at about 11:00 a.m. that day.
12. The two iPads were purchased by the restaurant for $2,300 each.
Mitigation
13. In passing sentence, I have carefully considered the oral and written submission of Miss Wong, including that the defendant has been a psychiatric patient since 2002[4].
14. I take into account the defendant has no previous convictions for burglary. The defendant does however have convictions for fraud in 2005 and theft in 2016, 2018 and 2019. The defendant also has convictions for possession of dangerous drugs, assault and criminal damage.
Starting point
15. The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment.
Opportunistic
16. Miss Wong submits that the burglary was opportunistic, the defendant not breaking into the restaurant but just simply walking in[5]. In support Miss Wong refers the court to HKSAR v Cheung To Ming[6].
17. In court Miss Wong explains that the defendant went to the restaurant for the first time and went alone. On arrival the defendant found the reception area was empty, that there was neither customers or staff and that it was very dark.
18. The defendant then met a waiter who showed him to a table on the second floor. Before ordering any food the defendant had an urge to go to the toilet. The defendant took the escalator to the third floor where again there was no customers or staff.
19. On seeing the door of the “Ordering Room” open and the lights on the defendant out of greed entered the room to look for something to steal. After looking but finding nothing to steal the defendant went to the toilet.
20. The defendant then took the escalator down to the second floor at which time he decided he no longer wanted to eat in the restaurant. The defendant saw the two iPads being charged and out of greed stole the iPads.
21. The prosecution case is that there were toilets on both the second and third floors and that the door of the “Ordering Room” was closed, the door automatically closing after being opened.
22. As indicated in court I do not accept the defendant went to the restaurant as a bona fide customer and that whilst going to the toilet he took the opportunity to enter the “Ordering Room” to look for something to steal.
23. The defendant has elected not to give evidence in support of his claim that he went to the restaurant intending to eat and that he only formed the intention to steal on seeing the door of the “Ordering Room” open when he went to the toilet.
24. I do not agree the burglary was opportunistic[7]. The facts are very different to those in HKSAR v Cheung To Ming where the appellant, an illegal immigrant, walked into the Mai Po Marshes Wildlife Education Centre, which had previously been broken into, and stole two packets of instant noodles.
25. The defendant did not just walk past an open door on the ground floor and steal food or items of little value[8]. Although the defendant did not find anything to steal he was clearly looking for anything valuable to steal as evidenced by his stealing the two iPads from the reception counter as he left the restaurant. No doubt the defendant also chose the early hours of the morning in the hope there would not be too many people around.
26. I find no grounds to depart from the guideline starting point of 2 years and 6 months’ imprisonment. Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 8 months’ imprisonment.
Theft
27. I am satisfied theft of an iPad is similar to theft of a mobile phone where substantial inconvenience is caused to the owner who loses the information on the phone/iPad. I am satisfied a starting point of 9 months’ imprisonment is appropriate. Giving the defendant full credit for his plea of guilty reduces the sentence to 6 months’ imprisonment.
Mental illness
28. Miss Wong submits that by reason of the defendant’s psychiatric illness the defendant might not appreciate fully the seriousness of the crime he committed[9].
29. In support Miss Wong refers the court to HKSAR v Chiu Peng, Richard where the Court of Appeal accepted that a court may properly allow a discount in sentence where a defendant is suffering from mental illness which played a part in the commission of the offence[10].
30. The defence have submitted to court psychiatric reports prepared by Dr Alan Tang and Dr Jessica Lam.
31. Dr Tang a psychiatrist at the Prince of Wales Hospital states that the defendant, who was last seen at the hospital on 1 March 2018, has a history of illicit drugs, mainly ketamine and ecstasy and in recent times mostly ketamine and ice and was diagnosed to be suffering from substance induced psychotic disorder.
32. Dr Lam a visiting psychiatrist at Siu Lam Psychiatric Centre last examined the defendant on 9 September this year and found he had drug-induced psychosis with polysubstance abuse.
33. Neither report states that the defendant was acting under the influence of psychiatric illness or that the defendant would not have been able to appreciate the seriousness of the crimes he committed.
34. Further, even if the defendant may have been acting under the influence of psychiatric illness at the time of the offences this was self- induced by his abuse of drugs.
35. Whilst sympathetic to anyone suffering from mental illness I am satisfied in the circumstances there should be no further discount on account of the fact the defendant may have been acting under the influence of drug-induced psychosis.
Totality
36. Taking into account that the burglary and theft were committed in the same restaurant at the same time, I am satisfied concurrent sentences are appropriate.
Sentence
37. The defendant is convicted and sentenced to concurrent sentences of 1 year and 8 months’ imprisonment and 6 months’ imprisonment.
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(D. J. DUFTON) |
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District Judge |
[1] Cap 210.
[2] See photographs 1-4.
[3] See photographs 5-8.
[4] See §6 of the defendant’s submission on mitigation.
[5] See §§17-18 of the defendant’s submission on mitigation.
[6] [2006] 2 HKLRD 260.
[7] See for example HKSAR v Law Tin Yam CACC 258/2010 and HKSAR v Hai Chung Po CACC 115/2013.
[8] See for example HKSAR v Cheung To Ming [2006] 2 HKLRD 260 and HKSAR v Hai Chung Po CACC 115/2013.
[9] See §§6-10 of the defendant’s submission on mitigation.
[10] [2002] 1 HKC 401.
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