HKSAR v. YAN TING LEONG

DCCC 264/2018

[2018] HKDC 1460

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 264 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of “burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (charge 1) and one count of “theft”, contrary to section 9 of the Theft Ordinance (charge 2).

Facts

2.  Ms Lam Hiu Fan is defendant’s half-sister.  She lives at the address as particularized in charge 1.  Since mid-2017, the defendant was not welcomed to go to Ms Lam’s flat. 

3.  On 1 September 2017, Ms Lam found 4 diamond rings (“E1-E4”) of total value of about HK$144,000 missing from her flat.  PW1 last saw them on 17 August 2017.  Only Ms Lam, her boyfriend and Ms Tung Oi Lin, mother of both Ms Lam and the defendant, had a key to the flat (charge 1).

4.  The defendant, his father, and Ms Tung live together in the flat at the address as particularized in charge 2.  In mid-October 2017, Ms Tung found 3 diamond rings (“E5-E7”) of total value of HK$71,889 missing from her safe in the flat.  Upon inquiry by Ms Tung, the defendant subsequently admitted having taken 2 of the rings.  Ms Tung last saw her rings in early September 2017 (charge 2). 

5.  Investigation revealed that the defendant pawed E1-E7 to a pawnshop at Sham Shui Po between 28 August and 30 October 2017. 

6.  In his video-recorded interviews, the defendant admitted to knowing that some of the recovered rings belong to Ms Lam and Ms Tung. 

Mitigation

7.  The defendant is aged 27, single and resides with his parents.  His father is a real estate consultant and mother is a housewife.  Prior to the offences, the defendant had been working as a medical assistant at Prince of Wales Hospital for several years.  He then worked as the personal assistant to his father from 2016 to 2018.  He has a clear record but was bound over for 12 months in January 2017. 

8.  In mitigation, it was submitted that the defendant has a long history of psychiatric problems.  He suffers from ADHD since childhood.  Then, he suffers from Schizoaffective Disorder since 2008.  Around the time of the offences, the defendant was suffering from an episode of hypomanic relapse due to heated disputes and break-up with his then girlfriend in late 2016.  After receiving a period of intensive treatment, the defendant is now mentally stable.  The defendant is deeply remorseful and is prepared to face the consequence of his wrongdoings.  He plans to work in Prince of Wales Hospital again.  Both Ms Lam and Ms Tung have forgiven the defendant for his wrongdoings and they, together with the father, are prepared to support the defendant’s rehabilitation.  In view of the circumstances of this case and relying on Attorney General v Lo Ching Fai [1996] 1 HKC 747 and HKSAR v Chow Chak Man & Anor [1999] 2 HKC 659, counsel for the defence urged the court to consider imposing a suspended sentence or to consider a Community Service Order.

Sentence

9.  The offences committed by the defendant are serious offences.  I do not consider Community Service Order to be an appropriate option.  Given the seriousness of the offences, imprisonment is the only option.

10.  There is a well settled sentencing guideline for burglary of domestic premises.  According to the guideline, the starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.

11.  It is well settled that the higher starting point for burglary of domestic premises is based on the fact that domestic premises are expected to be occupied and traumatic effect on the occupants is expected if burglary is committed in their presence.  In considering the appropriate starting point, I take into consideration the absence of aggravating features in the commission of the burglary offence.  Further, given the premises burgled is the home of Ms Lam, it is unlikely that Ms Lam would be terrified even if she saw the defendant entering her home.  I therefore consider the appropriate starting point to be 2.5 years’ imprisonment.  Given the defendant’s plea, the sentence is reduced by 1/3 to 20 months’ imprisonment.

12.  For the theft offence, the defendant stole the properties of his mother at their residential home.  I consider this theft involved an element of breach of trust. 

13.  The Court of Appeal has laid down sentencing guideline for theft involving breach of trust (see HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 770 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017).  For theft of less than HK$250,000, the sentence is less than 2 years.

14.  For charge 2, given the value of properties stolen, I consider the appropriate starting point to be 7.5 months’ imprisonment.  Given the defendant’s guilty plea, the sentence is reduced to 5 months’ imprisonment.

15.  I note that the stolen properties were all recovered and that Ms Lam and Ms Tung have forgiven the defendant.  In the circumstances, I am prepared to grant him a further discount.  For charge 1, the sentence is reduced by 3 months to 17 months.  The sentence for charge 2 is reduced by 1 month to 4 months.

16.  Apart from those factors, I do not see other mitigating factor justifying further reduction of sentence. 

17.  The two offences committed by the defendant are entirely separate and distinct offences.  In theory, their sentences should run consecutively. Taking into consideration the totality principles, I consider a total sentence of 18 months is sufficient to reflect the criminality of the defendant’s act. I order that 1 month of the sentence of charge 2 to run consecutive to the sentence of charge 1, making a total sentence of 18 months’ imprisonment.

18.  Counsel for the defence submitted there are exceptional circumstances justifying suspension of sentence in this case, namely, the offences were committed while the defendant was suffering from the relapse of his mental illness, that the burglary was committed at the home of his sister and that his family members including the two victims had forgiven him. 

19.  Ill health of an offender is not a licence to commit crime.  Mental impairment may diminish the moral culpability of an offender and may reduce the appropriate sentence.  Dr Choi’s report revealed that the defendant had a lot of business idea and believed he could earn a lot of money during the relapse. He was cheated in the business deals and as a result owed some debts.  In order to settle the debts, he thus stole from his family, thereby committing the present offences.  It is clear that the defendant acted with knowledge of what was being done and with knowledge of the gravity of the criminal conduct.  It was submitted that the defendant’s reasoning power was affected by the relapse.  While I accept the defendant’s reasoning was affected by the relapse, what he had done is no different from the theft committed by a person without mental illness, who makes a foolish decision to steal in order to settle his debts.  I do not consider the fact that the defendant committed the offences at the time when he was suffering from a relapse of his mental illness, together with the domestic setting of the offences, are exceptional circumstances justifying suspension of sentence.  Further, a plea of guilty, good character and youth are not, taken on their own or in combination, exceptional circumstances justifying suspension of sentence (see paragraph 45-15 of Sentencing in Hong Kong, 8th edition).

20.  In the circumstances, I therefore sentence the defendant to 18 months’ imprisonment.