HKSAR v. CHOI KWOK YIN

DCCC 1074/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1074 OF 2016

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REASONS FOR SENTENCE

The defendant pleaded guilty to 4 charges of "Burglary". Within a month, he burgled a school in Wong Tai Sin once and another school in Fanling 3 times.

Summary of Facts

Charge 1

2.  Bishop Ford Memorial School ("Bishop School") is a primary school located at Wong Tai Sin.

3.  About 6:00 p.m. on 19 August 2016, Mr. POON (PW1), janitor of Bishop School, locked the multi-purpose room.  About 8:40 a.m. on 20 August, PW1 noticed the air-conditioning of the multi-purpose room having been turned on.  He then entered the room to check.  When he tried to open the storeroom within the multi-purpose room, the door was held by someone from inside.  PW1 immediately went to seek help.  A male then rushed out and climbed over the rear gate of the school.

4.  PW1 found a bottle of juice (property of the school; valued at $10) having been consumed with the empty bottle discarded in the rubbish bin in the multi-purpose room. The Police lifted a fingerprint from the empty bottle.  The fingerprint was later confirmed to be the defendant's.

Charge 2

5.  HHCKLA Buddhist Po Kwong School ("Buddhist School") is a special education school located at Fanling.

6.  About 7:00 a.m. on 9 September 2016, Mr. LEE (PW2), school bus driver, saw a male at the playground of Buddhist School.  Suspecting the male not being a student or staff member, PW2 queried him.  The male claimed that he had dropped his ball, then quickly climbed over the main gate and fled.

7.  Madam YU (PW5), teacher of Buddhist School, soon found the lights and air-conditioning of her classroom (Room 203) having been turned on.  Three packs of biscuits (properties of the school; valued at $60) were found missing from the drawer of her desk.  Some used tissue paper and biscuit packaging were found in the rubbish bin.  The Police was alerted.

Charge 3

8.  About 7:30 p.m. on 12 September 2016, Madam WONG (PW3), janitor of Buddhist School, locked all rooms of the school.

9.  About 6:50 a.m. on 13 September, PW3 found the lights and air-conditioning of Room 203 having been turned on.  She could smell a strong body odour in the room and also saw some used tissue paper inside the cabinet.  The drawer of the teacher's desk was opened, and a pack of biscuits (property of the school; valued at $20) was found missing.  PW5 checked Room 203 and confirmed the loss.  The Police was alerted.

Charge 4

10.  About 7:30 p.m. on 15 September 2016, Mr. MA (PW4), janitor of Buddhist School, closed the doors and windows of Room 203.  The following day was a public holiday.

11.  In the early hours on 17 September, the Police conducted an anti-burglary operation at the Buddhist School.  PC 15418 (PW7) saw someone inside Room 203.  PW7 entered Room 203 about 6:30 a.m. and saw the defendant washing his hands by the sink. Upon search, a pack of biscuits (E1; valued at $20) and a teacher's thank you note (E2) were found in the defendant's rucksack.  PW5 later confirmed that both E1 and E2 were properties of the school.

12.  Under caution, the defendant claimed that he slept in the Buddhist School because he had no place to stay.  He admitted having taken E1 because he was hungry.  He took E2 as something to write on.  He also admitted having climbed into the Buddhist School twice before; and having eaten the biscuits in a classroom.

13.  CCTV footage of Room 203 captured the defendant entering the classroom on 17 September 2016 through a window and sleeping there.  It also shows him turning on the lights and air-conditioning and taking E1.

14.  In his 1^st video recorded interview, the defendant admitted in details how he committed the offences in Charges 2 to 4 at the Buddhist School.  In his 2^nd video recorded interview, he admitted how he committed the offence in Charge 1 at the Bishop School.

Mitigation & Sentence

15.  The defendant is 35 and has 2 conviction records, which included 1 "Theft" offence.  Defence solicitor Mr. LI informed me that contrary to the antecedent statement, the defendant's father is still alive.  The defendant also has an elder sister and he resides with her in Tai Kok Tsui.

16.  In mitigation, Mr. LI submitted that the defendant had a traffic accident in the early 2000s, after which he began to suffer from post-traumatic distress.  The defendant went into the 2 schools to seek shelter (from road traffic) and to calm himself down.  Mr. LI invited me to view the photographs of the crime scenes.  He submitted that there were quite a few valuable items in those rooms (such as computers and clothes), but the defendant did not take them.

17. Although Mr. LI submitted that the defendant's instruction is no need for psychiatric reports, I decided to call for 2 to assist me with sentencing. Both reports indicated that the defendant's mental health record dates back to 2001. He last attended his out-patient appointment in June 2013. Both psychiatrists consider that the defendant is likely suffering from schizophrenia and recommend a Hospital Order for 3 months.

18. It is plain that defendant is a psychiatric patient who needs professional in-patient treatment. Furthermore, I find that the defendant may not be a typical burglar (even distinguishable from those hungry illegal immigrants who break into village houses to steal food). I am aware of the gravity of burglary offences, but cannot ignore the defendant's need for psychiatric treatment. Although a Hospital Order for 3 months may seem to be a comparatively short period of incarceration, sentencing the defendant to the usual prison term may not resolve the root of his problems.

19. A Hospital Order carries with it a proviso under section 47(2) of the Mental Health Ordinance (Cap.136), which in effect stipulates that his release will be subject to medical opinion. This proviso offers a safeguarding mechanism which ensures that the defendant would not be released unless it is safe for him and the community to do so.

20. Based on the reasons stated above, I consider that it is in the community's best interest as well as the defendant's to make a Hospital Order in accordance with the psychiatrists' recommendations. Hence, for Charges 1 to 4, I sentence the defendant to detention under a Hospital Order in Siu Lam Psychiatric Centre for 3 months. For the avoidance of doubt, the proviso under section 47(2) applies.