HKSAR v. WEI QINGCHANG AND ANOTHER

DCCC 32/2022

[2023] HKDC 218

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 32 OF 2022

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REASONS FOR SENTENCE

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1.  The defendants were jointly charged with one count of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap  210’ and each being charged with one additional count of unlawful remaining contrary to section 38(1)(b)  of the Immigration Ordinance, Cap 115. The defendants pleaded guilty to their respective charges, admitted the facts and were convicted accordingly.

FACTS

2.  The residence of the Sun’s family at Flat C, 1^st Floor, 202 Shau Kei Wan Road was being burgled on 14 June 2021 between 4:30pm and 8:30pm.  The main entrance was locked from inside by the burglars.  Window grilles of a window being prized opened, locked drawers were prized opened, drawers inside the flat were ransacked.  Cash of around HK$70,500, RMB3,000 and other valuable properties being stolen.

3.  CCTV at Ellen Building captured D2 wandering in the back alley leading to 202 Shau Kei Wan Road around 8:09pm and shortly joined by D1.  The two stayed in the back alley for around 1 minute and disappeared from the camera.  CCTV at Sunrise Motor Service captured D2 wandering at 202 Shau Kei Wan Road around 8:12pm together with D1.  D1 disappeared 1 minute later and D2 remained at the spot for around 11 minutes. At around 8:35pm on the same day, D1 and D2 reunited at Sai Wan Ho MTR station.  When the officers approached them, they attempted to flee but were subdued.  Upon search, items stolen from the Sun’s family were recovered from the rucksack carried by D1. 

4.  In addition, the following items were found inside D1’s rucksack and D2’s bag respectively:

D1

(a)  1 large size screwdriver’

(b)  1 medium size screwdriver;

(c)  1 torch; and

(d)  1 pair of gloves.

D2

(a)  1 pair of grey 3M gloves; and

(b)  1 torch.

5.  At the material, D1 and D2 having entered Hong Kong unlawfully and remained in Hong Kong without the authority of the Director of Immigration. They together burgled the Sun’s residence while the family was away. 

MITIGATION

D1

6.  D1 aged 42, Mainland resident, married with 3 children, all live with D1’s parents in a small village house owned by D1’s father.  He worked as a farmer and casual worker in Mainland, earning about RMB1,500.  D1’s parents are in poor health; they are financially relied on D1.  His wife used to be a housewife, since his arrest, the wife has taken up a job at a hotel, earning about RMB2,000 per month.

7.  D1 has one previous burglary conviction in 2018 and was last released on 30 April 2019.  He was known to mental health services in China in 2010.  He was last seen at WKPC on 25 April 2022.  Clinically, he still experienced auditory hallucination occasionally but was not distress by this.  There was no paranoia.  His speech was coherent and relevant. He suffers from schizophrenia and he is currently on medication at night.

8.  The defence submitted that D1’s mental disorder was sufficiently severe that it had hampered his power of objective reasoning and control at the material time.  His mental health may well have played a part in the commission of the offence whereby he did not realize the seriousness of what he was doing whereby his culpability was lessened, and sought for a reduction of 9 months from the starting point as given in HKSAR v Zhang Mingtong.

D2

9.  D2 aged 38, Mainland resident, single.  His parents are not in good health and require constant medical follow-ups at hospital.  The parents live at hometown while his siblings are working at different provinces away from home.  D2 used to be a factory worker earning RMB 5,000 to 6,000 per month.  He was out of job after the factories were closed for the covid epidemic.

10.  D2 has a clear record.  He was not in possession of any heavy housebreaking equipment nor sharp implement.  No occupants were inside the premises.  No sever damages caused and all the stolen properties were recovered.  This was not a well-planned burglary and D2 was not a professional burglar.  He made frank admission about his illegal immigrant status.

11.  D2 has been remanded since his arrest on 14 June 2021.  During his remand, he deeply reflected on his own misdeeds and decided to bear full legal consequences.  He looks forward to reunite with his family upon his release and undertakes to live a law-abiding life.

Sentence

12.  The customary starting point of sentence for domestic burglary is 3 years’ imprisonment.  Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point.  The conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.  Same principle is applicable to domestic and non-domestic burglary HKSAR v Sim Ka Wing CACC 450/2000.

13.  Yeung JA, as he then was, said in HKSAR v Cheng Wai Kwai CACC338 & 339/2007 a case of burglary of non-domestic premises:-

“The proper starting point for sentence in a case of burglary of non-domestic premises is 30 months’ imprisonment (see Rv Wong Man unreported, CACC 372/1992). The starting point can be adjusted upwards if there are aggravating circumstances such as: (1)  the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2)  the offence is committed by two or more people; (3)  the offence targets at substantial premises and involves substantial properties; (4)  the offender is a professional burglar and not just an opportunist; (5)  the offender has previous convictions, particularly previous conviction of similar nature, and (6)  the offender commits multiple offences.”

14.  In the present case, the flat was ransacked, window grilles and locks were prized opened. Cash over $70,000 and other valuable items were stolen.  I accepted limited damages were caused to the premises, no occupant was inside at the material time, and all the stolen properties were recovered.  However, the present case was committed by two persons, both were found in possession of housebreaking tools and/or gloves.  I consider the joint enterprise are aggregating features and increase the starting point by 3 months.  The defendants pleaded guilty, full 1/3 discount will be given.  D2 has a clear record, on this I allow him a further 1 month’s deduction.  There is nothing particular in D2’s personal background, his parents’ health condition was known to D2 before his commission of the offences, I do not consider there to be any further mitigating factor in the case of D2.

15.  It was submitted on D1’s behalf that D1’s mental disorder was sufficiently severe that it had hampered his power of objective reasoning and control at the material time.  The defence urged a reduction of 9 months for D1’s mental condition on the ground that his mental health may well have played a part in the commission of the offence whereby he did not realize the seriousness of what he was doing whereby his culpability was lessened.

16.  The Court of Appeal in HKSAR v CHIU Peng Richard [2002] 1 HKC 401 held that “if an accused were suffering from mental illness which played a part in the commission of the offence, the court might properly allow a discount of sentence.  The justification for the discount was to reflect the diminished criminality or culpability on the part of the accused who had committed a crime under an abnormal state of mind.  He knew 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.  Or, as in this case, the accused’s mental illness made him gullible and easily susceptible to persuasion by the perpetrator of the crime, reducing his responsibility for participating.”

17.  D1’s counsel referred me to HKSAR v ZHANG Mingtong DCCC929/2019 in that case the defendant a visitor attempted to commit two burglaries in September 2019.  The psychiatric report of that defendant revealed that he has received psychiatric treatment in China for around three to four years, the defendant reporting hearing non-existing voices with abnormal referential and persecutory idea.  With medication the defendant’s condition improved, however, prior to coming to Hong Kong the defendant had not been taking his medication for half a year.  On admission to Siu Lam Psychiatric Centre in November 2019 the defendant was diagnosed to have schizophrenia with symptoms of disorganized speech with derailment and loosening of association.  The sentencing judge was satisfied that the defendant’s mental health might well have played a part in the commission of the offence and lower the starting point to 21 months for each attempted burglary.

18.  But how D1’s schizophrenia contributed or related to the present burglary and unlawful remaining?

19.  D1 said he met D2 on the day of the burglary but he could not recall the details of what happened next.  But D1 confirmed that he admitted he had the necessary mens rea and the facts.  The facts admitted by D1 suggested that he was the one who entered the premises and stole therein.  If so, he was the one who locked the main entrance of the premises; counsel for D1 made no submission to the contrary.  Counsel for D1 submitted that D1’s mental health might have played a part in the commission of the offence and urged me to allow a reduction on this factor.

20.  D1 has one previous conviction of burglary DCCC219/2018.  According to the fact of that case, D1 together with another burgled a domestic premises in a similar manner.  On that occasion the occupants of the premises returned and one of them was attacked.  Apparently D1 has learnt a lesson from that occasion and the main door was locked from inside to prevent the occupants entering the premises in the present case.  In that case D1 has put forward similar mitigation, but no discount was given for his alleged mental condition.  I do remind myself that D1’s mental health condition might not be the same in 2021.

21.  In 2010 when D1 first known to mental health services, he presented with irrelevant speech and abnormal ideas of being the god-son of Deng Xiaoping and Ki Ke Qiang, as well as hearing voices telling him about these ideas and poor sleep.  D1 said he did consult a psychiatrist in Mainland after his release in 2019, followed up on several occasions and on medication up to 14 June 2021, if so his mental state should be stable up to 14 June 2021. 

22.  D1 said he continued to take anti-psychotic medication whilst he was in custody.  In April 2022 when he was last seen at WKPC he experienced auditory hallucination occasionally but not distressed by this. He has fair sleep and he said Chairman Deng was his God father.  There was no paranoia and his speech was coherent and relevant.  D1 said he committed the burglary due to fantasies/hallucinations he was having.  But how the ideas of being the god-son of Chairman Deng and Premier Le had any to do with the offences.  Unlike the defendant in CHIU Peng Richard and ZHANG Mingtong, there is no indication that his schizophrenia had any to do with the burglary and his illegal remaining in Hong Kong.  I have made it clear to D1 that if he wants to pursue on this point, he would need to provide more materials for my consideration.  But no further material was provided.

23.  With the materials before, I am not satisfied that D1’s mental health had any to do with the commission of the present offences.  No reduction would be given on this ground.  The parents’ health condition and the family financial situation were known to D1 before his commission of the offences, I do not consider this amount to a mitigating factor.  Psychiatric treatment has been provided to D1, I do not consider there to be any further mitigating factor in D1’s case.

24.  The tariff sentence of unlawful remaining is 15 months’ imprisonment after a plea of guilty for a first offender.  D1 and D2 pleaded guilty and are sentenced to 15 months accordingly.  As reiterated by the Court of Appeal in HKSAR v Lau Pang CACC 252/2004 it was well settled that the sentence for burglary should be consecutive to the sentence for unlawfully remaining in Hong Kong. Taking into account of the totality principle, I allow 3 months of unlawful remaining to be served concurrently with the sentence of burglary. 

ORDER

Charge 1 D1 is sentenced to 26 months’ imprisonment.

D2 is sentenced to 25 months’ imprisonment.

Charge 2 D1 is sentenced to 15 months’ imprisonment, 3 months served concurrently with Charge 1, making a total of 38 months.

Charge 3 D2 is sentenced to 15 months’ imprisonment, 3 months served concurrently with Charge 1, making a total of 37 months.