HKSAR v. LAU FEI YUEN

DCCC794/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 794 OF 2011

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to a charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210.

2.  You have admitted that on 28 May 2011 you entered a domestic premises at No. 11 Ma Wan Chung Tsuen, and stole therein a wallet, one Hong Kong ID card, one bank card, one membership card, one library card, one photo, two telephone books, three shopping discount cards, one shopping stamp card, one Octopus card and cash of about $1,000.

3.  On that morning at about 8.15 a young boy who was residing there with his mother saw you inside their house at about 8.15 am. When he saw you he asked you, “What’s up”, but you left the premises quickly said goodbye and did not answer him.

4.  Later, the mother came and looked for her wallet.  She found it was missing.  Her wallet was on the ground floor of the premises.  Her son then told her that he had seen you in the premises.  He knew you as he had played with you once before about a month previously.  He also remembered that you had come to the premises once before and he knew you often hung around in the vicinity of Yat Tung Estate, Tung Chung.  The premises in question here was in Ma Wan Chung Tsuen, Tung Chung.

5.  The matter was reported to the police and the police took the young boy to look for you around Yat Tung Estate.  Some 3 hours later the police and the young boy located you at the rooftop of No. 2 Carpark at Yat Tung Estate at about 11.10 am.  The boy identified you as the one who had entered the premises earlier that morning.

6.  You were arrested and cautioned.  You admitted you went to the premises that morning but made up a story which I shall refer to later.  Part of the story was that you had picked up the wallet as you saw some male throw it away and you found no money inside.  You however took the Octopus card and threw the wallet away.  The police officers found cash of $558.50 on you and an Octopus card. 

7.  Later that day you led officers to recover the wallet and the items as listed in the charge from a tussock at the roadside of Tung Chung Road.

8.  PW1 recognised her property, that is the wallet and all the other items therein in the charge sheet except for the cash, and the Octopus card, she recognised the plastic cover and the police later confirmed that it was similar to the transactions she had made in using the bus and MTR fares in the last 10 transactions. 

9.  She confirmed that she left the main door of the premises unlocked when she was inside her house.

10.  Defendant, you have admitted that despite the made up story to the police officers, you had burgled these premises.

11.  You are 25 years of age and have 13 previous convictions.  You have three similar to burglary.  Those burglary offences were committed in 2007 to which you were sentenced to 8 months’ imprisonment; 2009 to which you were sentenced to 18 months’ imprisonment for two charges of burglary; and 2010 to which you were sentenced to 19 months’ imprisonment.  You were released from your last sentence of imprisonment on 11 November 2010.

12.  Mr Louis Fung has mitigated fully and thoroughly on your behalf today.  You came to Hong Kong when you were 15 years old.  You suffer from mild grade mental retardation.  I have had a psychologist’s report dated 1 March 2006 submitted to me, where it is found there that the age equivalent is estimated to be 8 years 3 months when you were at the age of 19 years and 7 months. 

13.  I have also had a medical report submitted to me dated 12 October 2011.  This is written by a senior medical officer of the Psychiatric Services for Intellectual Disability at the Tuen Mun Mental Health Centre and Castle Peak Hospital.  Dr Ronald Fung states therein that he last saw you on 17 May 2011 and you were mentally stable with no psychiatric symptoms.  You have not returned to the clinic for follow-up since then.  He says in conclusion you are suffering from mild mental retardation and has no recommendation to make regarding your recent mental condition.

14.  In view of your history and the previous convictions, I have called up the two previous cases of DCCC1168/2008 and DCCC1225/2009.  The 2008 case and the 2009 case both reflect your mild grade mental retardation and have taken that into account.  Those were burglaries of domestic premises of which the court took the usual starting point of 3 years’ imprisonment, and in both cases the court found that your mild grade mental retardation played no part in the commission of the offence.  The usual discount of one-third was given. 

15.  However, in the 2008 case by Deputy District Judge Dufton, he gave you a further discount because without your admitting the offence to the police the prosecution would not have been able to secure the convictions, and as for the 2009 case, Deputy District Judge Bernadette Woo also took a 3 year starting point, reduced that to 2 years, and gave you a further discount to 19 months to reflect the fact that the property was recovered.

16.  As regards the present offence, it is clear to me also that your mental retardation played no part in your commission of this offence.  In the 2008 case by Deputy District Judge Dufton, you had in that case gone around looking for any doors of houses which were open and then went in to commit burglary. 

17.  In this case, you went you say to visit the young boy to play with him, however as you saw the door was unlocked, you went in there and committed this offence.

18.  I do not agree with Mr Fung that this is an opportunistic crime.  Given the similarities to the previous offences, this is clearly something that you do.  You go around finding open doors then go in and burgle those premises.  Furthermore, despite you knowing the boy and saying that you went there to play with him, when the boy saw you and asked you “what’s up” instead of replying, you went away. 

19.  When eventually the boy and the police officers located you, you deliberately made up a story and lied that some other man had gone into the premises to burgle the premises and you had seen that man throw away the wallet.  You then went to pick up the wallet and found there was no cash and took the Octopus card. 

20.  This to me shows that although you are of mild grade mental retardation, you have sufficient intelligence to make up stories like this when you are caught by the police.  This story would have been made up immediately on the spot when you were arrested.  You had no time to think about making up this story. 

21.  For the above reasons I find that your limited intelligence did not in any way hinder your intention to commit this offence.

22.  Whilst of course I am sympathetic to anyone suffering from mental disability, I am satisfied that no discount at all should be given by reason of your mild grade mental retardation.  Quite conversely, I think that instead of any discount I think these are aggravating factors.  This is your fourth case of burglary within 3 years since 2009.  In the 2009 case, you committed that burglary two days after your release from prison.  In this case, you committed this burglary some 6 months after your release from prison.  Clearly you have learnt no lesson at all from the previous sentences of imprisonment.  This has not stopped you from repeating your crime. 

23.  As in cases where the defendants are recidivists that is an aggravating factor, and I consider in this particular case before me that the usual starting point of 3 years’ imprisonment for domestic premises should be increased.  In the circumstances, defendant, I take a starting point of 3 years and 3 months’ imprisonment.

24.  Defendant having taken into account your guilty plea, I give you a full one-third discount, that shall reduce the term to one of 26 months’ imprisonment. 

25.  As in the case of 2009, I agree that a further discount should be given for the fact that you assisted and co-operated with the police as soon as you were arrested and led the police to recover the stolen property and all of the stolen property save for some $50-odd was recovered. 

26.  In those circumstances, I shall reduce the term and you shall be sentenced to a term of 23 months’ imprisonment.