HKSAR v. CHEONG MAN KIT

DCCC 677/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 677 OF 2017

-----------------------------------

-----------------------------------

----------------------------

Reasons for Sentence

----------------------------

1.  The defendant pleaded guilty to one charge of theft and one charge of burglary.

Summary of facts

2.  The theft by the defendant of a key led to the burglary of the domestic premises the lock of which was opened by that key, resulting in the two charges.

3.  The burgled premises is on the 12^th floor of an estate in Ping Shan, Yuen Long, where Mr Lee and his family resides.

4.  Mr Lee came to know the defendant who was working at a hardware shop in Tin Shui Wai in February 2017. They became good friends and Mr Lee had invited the defendant to his home for dinner 4 to 5 times.

5.  On 10^th March the same year, Mr Lee picked up the defendant at Hung Shui Kiu. They had lunch together with Mr Lee’s wife before going to work. It was during this lunch that the defendant had stolen the key to the premises from Mr Lee’s shoulder bag.

6.  Mr Lee and the defendant went to work together after lunch. At around 1:30 pm, the defendant borrowed Mr Lee’s car, saying how he wanted to go home to change before the defendant accompanied Mr Lee’s wife to mainland China. Mr Lee did lend him his car.

7.  At around 2:40 pm, the defendant returned the car to Mr Lee. The defendant went with Mrs Lee to Lok Ma Chau while Mr Lee returned home alone.

8.  Upon arrival at his front door, Mr Lee found his key missing and so he had to wait for his wife to return from China.

9.  When Mrs Lee did return at around 6pm, she told Mr Lee that the defendant did not go to China with her as he claimed to have forgotten to bring his Home Return Permit.

10.  They then went home. Although there was no sign of a break-in, nor ransacking, they found RMB$8,000 and HK$9,000 cash missing from a drawer in the bedroom. Two Rolex watches had also gone missing from a box in the living room. Mr Lee reported the matter to the Police. He also tried to contact the defendant but failed.

11.  Upon Police investigation, they found CCTV footage capturing the defendant entering the building of the premises at around 2:20 pm and left about 4 minutes later.

12.  Further investigation revealed that the defendant had pawned one of the two Rolex watches the following day on 11^th March for HK$30,000. The defendant pawned the other Rolex watch on 16^th March to another pawnshop for HK$50,000.

13.  The defendant was arrested at the Hong Kong International Airport on 28^th May when he returned to Hong Kong.

14.  In the subsequent video recorded interview, the defendant confessed to how he noticed Mr Lee kept the Rolex watches in a box in the living room, how he stole the key and made up the excuse to leave Mr Lee and went to his home to steal the watches and the cash.

15.  The defendant also explained how he pawned the watches and then on 17^th March, he boarded a vessel in Cheung Chau and left Hong Kong without going through border control.

Previous convictions

16.  The defendant has 23 convictions from 11 court appearances. His first convictions were in May 2009 when the defendant was 19 years old. He was sentenced to 24 months’ probation for one conviction of theft and two convictions for Obtaining property by deception.

17.  All but one of the remaining convictions are related to stealing, with 16 for theft, one for failing to return to Rehabilitation Centre, one for taking conveyance without authority, one for obtaining property by deception and one for fraud.

18.  The defendant’s last 7 convictions were all on the same day on 14th July 2017. The total length of the sentence was 16 months’ imprisonment. The earliest date of discharge is 28^th May 2018, in other words, with 6 more months left when counted from the date of the sentences in the present case.

19.  This set of 7 convictions arose from offences committed by the defendant in September to November 2016. The defendant was arrested for those offences in December 2016, as well as in January and February 2017. It is conceded by the defendant that he had committed the offences in the present case whilst he was on bail for the other set of offences.

20.  As at the day of the commission of the present offences, the defendant’s latest conviction was some 3 years back, in December 2014.

Mitigation

21.  The defendant is 26, born and educated in Hong Kong up to Form 5 level. He got married in Thailand in January 2017.

22.  Prior to his arrest, the defendant was working as a driver and a housekeeper in a guesthouse in Thailand, earning about $25,000 per month on average.

23.  When the defendant is in Hong Kong, he lives at his mother’s property rent free.

24.  Mr Yip for the defendant, in his helpful written submissions, pointed out that the defendant had admitted to the offences and has shown remorse.

25.  I was told that the defendant was not in need of money. He has developed a habit of stealing since when he was a child and had received counselling sessions through the Social Welfare Department.

26.  Mr Yip suggested that the defendant committed the offences “for psychological reason as he could not resist such temptation”. Based on this suggestion, a psychologist report was ordered to be prepared on the defendant prior to sentencing. The salient parts are referred to and considered below.

27.  Lastly, Mr Yip told the court that the defendant’s father-in-law, an overseas Chinese in Thailand, has agreed to lend HK$100,000 to the defendant to compensate the victim. When the court inquire with Mr Yip why the father-in-law cannot transfer the money to the defendant’s or the law firm’s account so that restitution can be made immediately, Mr Yip said that he did explain to the father-in-law how restitution should be done before sentencing and that his law firm can receive the money for the defendant and will be able to pay the money into court, but that proposition was rejected and he was told that there will not be any money forthcoming until the defendant’s release.

28.  As at the time of sentence, no money has been repaid.

Sentence

29.  It is trite law that the sentencing tariff for burglary of a domestic premises is that of 3 years’ imprisonment. This starting point is subject to adjustment based on aggravating and mitigating factors, if any. It is not disputed that the premises the defendant burgled was a domestic premises.

Circumstances of the commission of the offences

30.  The defendant obviously gave some thought into planning the burglary. The execution was done with some sophistication involving the defendant acting out his story.

31.  Having said that, it did not take long for the Police to confirm that the defendant was the burglar. It was always just a matter of time before the defendant was apprehended.

32.  The property involved cannot be said to be a small amount. There was $17,000 of cash and at least $80,000 that the defendant got for pawning the watches. None of the money had been recovered.

33.  Nevertheless, the value would be within the expected range of what one might find in a domestic household being targeted for burglary. I, therefore, find that the value of the stolen property was not so high as to warrant an enhancement of the usual starting point.

34.  According to the psychologist report mentioned above, the defendant is found to be an “egocentric and impulsive person with Antisocial Personality Disorder”. The defendant has “a very low frustration tolerance” and is interested in “maximizing his gains and pleasure with the least amount of efforts”.

35.  It is the clinical psychologist’s opinion that the defendant’s “long history of stealing and deceptive behaviours are strongly related to his impulsive and anti-social personality”. The behaviours have persisted over the years “probably because he is often able to get away from detection and sanction (at least for a short period) and because he does not perceive the consequences to be very serious”.

36.  The defendant’s risk of re-offending is assessed as “very high” and “his motivation to change appears to be somewhat superficial at present”.

37.  There is no psychological findings to suggest that the defendant committed the offences out of a psychological disorder that compelled him to steal or that he was not in control of himself when he decided to steal.

38.  Physically, the defendant was diagnosed to suffer from aneurysm in his brain in 2016. He was hospitalized for one year. The aneurysm affected his vision in the right eye. The defendant left the hospital against medical advice but did continue to attend follow-up treatments. There was a cerebrovascular incident several months ago and since then the defendant has been experiencing some walking difficulties.

Starting points

39.  Taking into consideration all the circumstances of the case, in relation to charge 1, I will adopt a starting point of 3 months’ imprisonment.

40.  In relation to charge 2, I will adopt the guideline starting point of 3 years’ imprisonment.

Aggravating factors

41.  According to the antecedent statement, at the time of the commission of the present offences on 10^th March 2017, the defendant was last released from imprisonment on 7^th January 2015, which was more than 2 years before.

42.  At the same time, as pointed out before, the defendant had 15 convictions, with all but one relating to dishonesty. The defendant is a repeated offender, and I find this an aggravating factor.

43.  Another aggravating factor is the fact that the defendant had committed the present offences whilst he was on bail for the offences he had committed between September and November 2016. As mentioned above, the defendant was arrested for those offences in December 2016 and January and February 2017. He was granted bail. Yet, he decided to commit the present offences whilst on bail. This is an aggravating factor.

44.  For these two aggravating factors, I will enhance the sentence in charge 1 by 1 month and the sentence in charge 2 by 3 months.

45.  The enhanced sentences are, therefore, 4 months and 3 years 3 months’ imprisonment respectively.

Mitigating factors

46.  The defendant told the court that he would like to repay the victim. As mentioned above, he had tried to borrow money from his father-in-law, who is a Thai national living in Thailand. As at the time of sentence, no restitution had been made, merely a bare promise to borrow some money to repay the victim after his release.

47.  Whether the defendant will be able to make good his promise is an unknown at this point of time. The defendant will, therefore, not be granted a discount on this bare promise of restitution.

48.  I do not find the defendant’s medical condition so serious as to warrant a discount in sentence.

49.  The only mitigating factor is the defendant’s timely guilty plea. He is to be granted the full one-third discount for that.

50.  The discounted sentences are 2.7 months’ and 26 months’ imprisonment respectively.

Totality for the present offences

51.  The stealing of the key was for the sole purpose of gaining entry into the premises to steal. I will order the two sentences to be served wholly concurrently, resulting in a sentence of 26 months’ imprisonment.

Totality with the earlier sentences

52.  The defendant is currently serving the 16-month sentence imposed on him on 14^th July 2017. His earliest date of discharge is 28^th May 2018.

53.  The offences in the present case were committed whilst the defendant was on bail for the earlier cases. Had the defendant been sentenced for both sets of offences on the same day, that factor will have to be taken into consideration.

54.  The present offences have no connection to the earlier offences. They cannot be viewed as forming one single transaction.

55.  The defendant had shown a serious disregard for the law when he chose to commit the present offences despite having been arrested and granted bail for the earlier, not 1, but 7 offences.

56.  Taking a step back, I find that the defendant must bear the full consequences of his action. As Mr Yip pointed out in his mitigation for the defendant, the previous punishments were insufficient to deter the defendant from committing further offences, this court must try to achieve that through the present sentence.

57.  Having said that, I must also consider whether the final sentence will have a crushing effect on the defendant from which he may not recover.

58.  Balancing the different considerations, I order that 3 months of the 26-month sentence in the present case to be served concurrently to the set of sentence imposed on 14^th July 2017, the balance consecutively.