HKSAR v. LAM CHI WAI AND OTHERS

DCCC 315/2020

[2021] HKDC 266

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 315 OF 2020

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REASONS FOR SENTENCE

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1.  D1 pleads guilty to five charges of burglary, contrary to section 11 of the Theft Ordinance[1] (charges 1-5). D2 pleads guilty to five charges of burglary, contrary to section 11 of the Theft Ordinance[2] (charges 6-10). D3 pleads guilty to one charge of burglary, contrary to section 11 of the Theft Ordinance (charge 8).

2.  Sentence was adjourned to 1 March 2021 for the preparation of psychiatric and psychological reports on D1 and D3.

3.  Full particulars of the offences are set out in the summary of facts admitted by the defendants on 16 February 2021.  In summary the burglaries were all of the same shop, “China Mobile” situated at Shop No. G1, Ground Floor, McDonalds’s Building, Nos. 46-54 Yee Wo Street in Causeway Bay (“the shop”). 

4.  On 4 October 2019, due to public events in the vicinity, the shop closed at 5:45 p.m.  CCTV captured the rolling shutter of the shop being raised at around 9:45 p.m.  Five unknown males, all dressed in black and wearing masks, entered the shop and damaged various items inside the shop. 

5.  All the burglaries were committed between 10:08 p.m. on 4 October 2019 and 3:13 a.m. on 5 October 2019 and were captured on CCTV. 

6.  I have viewed the CCTV footage both of the damaging of the shop and the ten burglaries. Photographs have also been submitted to court.

Charges 6, 7 & 8

7.  The first three burglaries were committed by D2.  D2 entered the shop three times between 10:08 p.m. and 10:39 p.m., the third time together with D3.

8.  In the first burglary at 10:08 p.m. D2 tried to remove a mobile phone which was hanging from the wall but in vain (charge 6).  Five minutes later D2 entered again and picked up one dummy mobile phone from the ground (charge 7). Twenty-six minutes later D2 and D3 entered the shop.  D3 removed the cord connecting an iPhone 11 Pro Max to the wall and stole the phone while D2 stood and kept watch.  D2 and D3 then left the shop together (charge 8). 

9.  CCTV footage showed that D2 was wearing a yellow T-shirt when he committed the third burglary together with D3 whereas he was wearing a red football shirt when committing the first two burglaries.

Charges 1-5

10.  Over a period of one hour and forty-one minutes between 11:07 p.m. on 4 October and 00:48 a.m. on 5 October 2019, D1 burgled the shop five times. 

11.  D1 first entered the shop at 11:07 p.m. on 4 October 2019 and stole one Huawei P30 Pro mobile phone by removing the cord connecting the phone to the dock on the display counter (charge 1). 

12.  D1 next entered the shop four minutes later at 11:11 p.m. and stole one Huawei Mate 20 Pro mobile phone by removing the cord from the counter (charge 2). 

13.  D1 next entered the shop four minutes later at 11:15 p.m. and stole another Huawei P30 mobile phone by also removing the cord from the counter (charge 3). 

14.  A passer-by saw a group of four to five people standing outside the shop, including D1.  D1 entered the shop and stole a mobile phone which he gave to a female who was waiting outside.  To avoid being seen the passer-by went to the tram station on Yee Wo Street from where he saw D1 enter the shop again and steal another mobile phone which he gave to a male.   The passer-by took photographs of D1 and the group with his mobile phone.  Around ten minutes later D1 and the group were seen leaving in the direction of Victoria Park.  A report was then made to the police. 

15.  D1 entered the shop again at 00:03 a.m. and 00:48 a.m. on 5 October 2019 and stole a mobile phone on each occasion (charges 4 & 5). 

Charges 9 & 10

16.  At 3:11 a.m. on 5 October 2019 D2 entered the shop again this time wearing a yellow basketball jersey, different to the yellow T-shirt worn when committing the third burglary (charge 8).  D2 tried to remove a mobile phone which was hanging from the wall but in vain (charge 9).  Two minutes later D2 entered again and stole an iPhone 11 by pulling the cord out of the wall (charge 10).

17.  At around 4 a.m. on 5 October 2019 the manager returned to the shop and discovered the glass display window next to the entrance was broken and the control panel of the rolling shutter damaged.  A total of nine mobile phones were stolen and two iPads, two televisions and two Octopus card readers were damaged.  

Arrest

D1

18.  D1 was arrested on 30 November 2019 outside the shop.  In two video-recorded interviews D1, inter alia, admitted stealing five mobile phones out of greed; giving them to his friends because he heard them saying they wanted a mobile phone; one friend gave him $200; the other phones he gave for free except one which he sold to a telecommunication shop for $500. 

D2

19.  D2 was arrested on 10 December 2019.  Under caution and in a subsequent video-recorded interview D2, inter alia, admitted that having seen protesters prize open the door of the shop he stole a mobile phone out of greed; he returned to steal another mobile phone only to realise later it was a dummy phone; he went home and told D3 and suggested to D3 to steal a mobile phone; he entered the shop five times as captured on CCTV and he sold the mobile phone to a street vendor for $2,000 spending all the money on food and drinks. 

D3

20.  D3 was arrested on 11 December 2019.  Under caution and in a subsequent video-recorded interview D3, inter alia, admitted D2 told him there was something to take outside; he went to the shop; he saw the shop was damaged; out of greed he stole an iPhone which he sold to a street vendor for $2,000 and that he spent all the money on food.

Mitigation

D1

21.  I have carefully considered the oral and written submissions of Mr Yeung on behalf of D1, including that D1, who is 37, is single, works as an odd job worker in McDonald’s and lives with his family which consists of his father and two elder brothers, one with intellectual disability[3].

22.  In oral submissions Mr Yeung told the court that D1, whose place of work was close by, was unable to go home after finishing work because a social event was happening and there was no transport home. 

23.  Out of curiosity D1 watched what was happening to the shop.  Out of greed and encouraged by other onlookers D1 committed the offences.  Mr Yeung submits that onlookers took advantage of D1’s disability, D1 having intellectual disability since he was young[4].

24.  Mr Yeung invited the court to call for reports before passing sentence.  I have read the reports which refer to D1 reportedly having intellectual disability since he was young; attending special school; never receiving training for his intellectual disability and having no other known psychiatric conditions.  The psychiatric report confirms that D1 was not known to the mental health service. 

D2

25.  I have carefully considered the oral and written submissions of Mr Tsoi on behalf of D2, including that D2, who is 40, is single, works as a casual worker in a restaurant and has suffered from schizophrenia for many years[5].

26.  D2 told the police he acted out of greed[6]. Mr Tsoi says that because D2 lived nearby he changed his clothes twice because they were dirty. 

D3

27.  I have carefully considered the oral and written submissions of Mr Cheng on behalf of D3, including that D3, who is 41, has been unemployed since 2019[7].

28.  I have read the mitigation letters written by the Christian Perfect Church and the Baptist Oi Kwan Social Service detailing D3’s voluntary work helping street sleepers, drug abusers and persons with disabilities by delivering free meals and taking care of them.

29.  I have also read the police “Found Property Receipt” confirming that in August last year D3 handed to the police a VISA credit card he had found.

30.  D3 told the police he acted out of greed[8]. In oral submissions Mr Cheng informed the court that at the time of the offence D3 was suffering from depression following the divorce from his wife and says this may have contributed to his momentary weakness and greed in committing the burglary[9].

31.  Mr Cheng invited the court to call for reports before passing sentence.  I have considered the reports which confirm that D3 was first known to the mental health service in July 2018 when he was diagnosed to have depression.  D3 has been attending follow-up at psychiatric outpatient clinic since discharge from hospital. 

Starting point

32.  The correct starting point for a single burglary of commercial premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment.

33.  I take into account that the three defendants are all first offenders having no previous convictions. 

34.  All counsel submit the burglaries were opportunistic and akin to that of a sneak thief[10]. In submitting that a lower starting point is appropriate counsel refer the court to HKSAR v Cheung To Ming[11].

35.  The facts of that case reveal the burglary was committed in very different circumstance to the burglaries committed by the defendants.  The burgled premises were the Mai Po Marshes Wildlife Education Centre and Nature Reserve.  The window next to the front door had been broken and the main door left open.  Nothing of any real value was taken.  Ten empty packets of instant noodles were found on a table in the kitchen.

36.  The defendant, an illegal immigrant, admitted that when he went past the Centre he noticed the door had been left ajar and as he was hungry he entered the Centre and cooked two packets of instant noodles.    The Court of Appeal were satisfied that the only safe basis for dealing with the defendant was to regard him as a ‘sneak thief’ who was able to walk into the Centre after others had broken into the Centre. 

37.  Save that the defendants did not break into the China Mobile shop the facts in Cheung To Ming bear no resemblance whatsoever to the burglaries committed by the defendants. 

38.  The summary of facts state that the shop closed at 5:45 p.m. due to public events in the vicinity.  It is a matter of public record that on the afternoon of 4 October 2019 the Government announced with effect from midnight the prohibition on face covering[12]. The announcement stimulated further protests on the streets, some of which were violent, including damaging shops.  The China Mobile shop was one shop that was damaged by protesters as is clearly seen on the CCTV footage.  This sets the context in which the burglaries occurred. 

39.  The first burglary committed by D2 was at 10:08 p.m. just over twenty minutes after the protestors damaged the shop.  D2 admitted he saw the protestors had prized open the door of the shop[13].  Five minutes later at 10:13 p.m. D2 committed the second burglary.  

40.  The third burglary was committed by D2 and D3 at 10:39 p.m.  D2 told the police he went home after the second burglary and told D3 to go to the shop to steal a mobile phone[14]. 

41.  D3 told the police that on the night of the offence he went home for dinner when D2 told him there was something to take outside and that when he arrived he saw the shop had been damaged[15].  In oral submissions Mr Cheng says that D3 was asleep when D2 came home and told him there was something to take outside.

42.  I reject D3 was at home at that time, let alone asleep.  Whilst I accept that after D2 committed the second burglary he went home, he did so to change his shirt from a red football shirt to a yellow T-shirt and not to inform D3 to go to the shop.  The CCTV footage clearly shows that at 22:00:40 both D2 and D3 were standing outside the shop; D3 was present outside the shop when D2 committed the first two burglaries at 22:08 and 22:13 and that D2 and D3 left together.   

43.  After playing the CCTV footage in court the case was stood down for Mr Cheng to take instructions from D3.  When the hearing resumed Mr Cheng confirmed that the person seen with D2 was D3 and that D3 had not been at home asleep.

44.  D1 committed the first of his five burglaries at 11:07 p.m. just over an hour after the shop had been damaged. 

45.  I am satisfied that none of the defendants could have been unaware that the shop had been damaged during the ongoing protests that evening.

46.  In my view the burglaries are properly described as “looting” which is an aggravating feature of the offence.  There is however no evidence that any of the defendants took part in the protests that night or damaged the shop.  If there was evidence the aggravating factor of looting would be far more serious.

47.  I am satisfied a starting point of 3 years’ imprisonment is appropriate for each burglary.  Giving the defendants full credit for their pleas of guilty reduces the sentence on each charge to 2 years’ imprisonment.

Sentence

48.  In passing sentence, I have borne in mind the need for individual justice, as articulated in the cases of HKSAR v Leung Pui Shan[16] and HKSAR v Yeung Kwun Kuen[17].  

Sentence

D1

Intellectual disability

49.  Mr Yeung submits that D1’s culpability is reduced by reason of his intellectual disability, the reports confirming that D1 has cognitive impairment.  Mr Yeung submits that although D1 knew what he was doing was wrong he might not appreciate fully the seriousness of the crimes he committed and was easily taken advantage of[18].

50.  In HKSAR v Chiu Peng, Richard 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[19].  The court said the justification for a discount in sentence by reason of mental illness was:

“…as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind. He knew that it was wrong to commit the crime, but he did not appreciate that the commission was as serious as it was: the degree of culpability was thus lessened.”

51.  Chiu Peng, Richard was cited in HKSAR v Chen Xuehui where the court reduced the sentence imposed after trial where the defendant suffered from Bipolar Affective Disorder and displayed florid symptoms at the time of the offence[20].  McMahon DHCJ in Chen Xuehui said that in determining whether the illness has affected one’s culpability for the offence requires an assessment of the nature and severity of the illness and an appreciation of the relevance of its symptoms to the commission of the offence.

52.  Dr Leung, consultant psychiatrist, is of the opinion that D1 is likely a case of Mild grade Mental Retardation or Limited Intelligence for which in patient treatment is not indicated and that follow-up by the social work service is recommended[21].

53.  The psychiatric report states that D1 understood the charges against him and the consequences and that he acted out of greed[22].

54.  D1 told the Registered Clinical Psychologist Jim H.K. Cheung that when he saw people outside the shop who wanted to steal but seemed hesitant, he wanted to act tough and initiated grabbing the phones.  D1 gave four phones to strangers and out of greed kept one.  D1 was aware that his actions were wrong but did not consider the potential consequences[23].

55.  Mr Cheung is of the opinion that D1 had adequate intellectual ability to distinguish right and wrong; D1’s cognitive impairment had undermined his consequential thinking and social judgment, which were impressed to be contributing factors to the index offence; that the behaviour of giving away stolen phones might be reflective of D1’s eagerness to make an impression and socially connect with those strangers and that the risk of re-offending was low. 

56.  Having carefully considered the reports and opinions of the clinical psychologist and the psychiatrist, I am satisfied that the defendant’s limited intelligence may well have played a part in the commission of the offence thereby lessening his culpability. 

57.  In the circumstances I reduce the sentence on each charge by 6 months to 1 year and 6 months’ imprisonment. 

Totality

58.  In my view total sentence must reflect that D1 committed five burglaries and that after committing the first three burglaries (charges 1, 2 & 3) D1 returned to the shop forty-eight minutes later and committed the fourth burglary (charge 4) and after a further forty-five minutes returned again and committed the fifth burglary (charge 5). 

59.  I note when committing the fourth and fifth burglaries the defendant appears to be alone and not with the same group of people who he handed phones to after committing the first three burglaries.  Mr Yeung says that D1 returned to the shop and committed the fourth and fifth burglaries out of greed. 

60.  Taking into account all the circumstances of the five burglaries committed by D1, I am satisfied a total sentence of 1 years and 9 months’ imprisonment properly reflects D1’s criminality on the five charges and takes into account D1’s personal circumstances and the seriousness of the offences[24].

61.  D1 is convicted and sentenced as follows:

Charges 1, 2 & 3 – 1 year and 6 months’ imprisonment concurrent on each charge; and

Charges 4 & 5 – 1 year and 6 months’ imprisonment concurrent on each charge with 3 months consecutive to charges 1, 2 & 3 and 15 months concurrent.

The total sentence to be served by D1 is 1 year and 9 months’ imprisonment.

D2

Totality

62.  Mr Tsoi refers the court to two sentences passed in the District Court where concurrent sentences were ordered[25]. I have considered these cases, the facts of which again are very different not least both cases only concerned two burglaries whereas D2 committed five burglaries. 

63.  In my view total sentence must reflect that D2 committed five burglaries, one together with D3 and that after committing the first three burglaries (charges 6, 7 & 8) D2 returned to the shop nearly five hours after the third burglary and committed two more burglaries (charges 9 & 10).  Mr Tsoi says that out of greed D2 returned to the shop and committed the burglaries. 

64.  Taking into account all the circumstances of the five burglaries committed by D2, I am satisfied a total sentence of 2 years and 4 months’ imprisonment properly reflects D2’s criminality on the five charges and takes into account D2’s personal circumstances and the seriousness of the offences[26].

65.  D2 is convicted and sentenced as follows:

Charges 6 & 7 – 2 years’ imprisonment concurrent on each charge;

Charge 8 – 2 years’ imprisonment with 1 month consecutive to charges 6 & 7 and 23 months concurrent; and

Charges 9 & 10 – 2 years’ imprisonment concurrent on each charge with 3 months consecutive to charges 6, 7 & 8 and 21 months concurrent.

The total sentence to be served by d2 is 2 years and 4 months’ imprisonment.

D3

Depression

66.  The psychiatric report states that D3 understood the charges against him and his position in legal proceedings[27].

67.  The clinical psychologist Joe Wong states that D3 denied significant features of mood or mental disorders before or amid the offence; that D3 alleged he was drowsy and ignored the consequences of his behaviour under the influence of psychiatric medication and that D3 admitted his greediness and believed the risk of apprehension was slim[28].

68.  Although D3’s performance in an intellectual screening test was below average Mr Wong is of the opinion that D3 should be able to differentiate right from wrong and well understand the consequences of his action[29].

69.  Clinical impression was that the present offending was not related to D3’s mood problem and that the major contributing factors were his greediness, underestimation of the risk of apprehension and negative peer influence.  Risk of reoffending was assessed to be in the lower end of the moderate range[30]. 

70.  Psychological intervention is said to be conducive to D3’s rehabilitation. 

71.  Mr Cheng submits that by reason of D3 being under the influence of psychiatric medication this might have contributed to his weakness in committing his first criminal offence.

72.  Having carefully considered the reports, I am satisfied there should be no discount on account of the fact the defendant may have been suffering from depression and taking psychiatric medication at the time of the offence.  

Charitable work

73.  I am satisfied that credit should be given to D3 for his voluntary work and his handing in a lost credit card.  I reduce D3’s sentence by 2 months to 1 year and 10 months’ imprisonment.

74.  D3 is convicted and sentenced on charge 8 to 1 year and 10 months’ imprisonment.