HKSAR v. NGAN CHI HIN

DCCC 91/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 91 OF 2017

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Reasons for Sentence

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1.  The defendant pleaded guilty to 4 counts of burglary.

Outline of facts

2.  The 4 burglaries were committed in January, March and August 2016.

3.  On 7 August 2016, the defendant rushed into the staircase on the first floor of number 14, Ma Wan Fishermen’s Village in Ma Wan and reached through a gate to try to open it from the outside. A tenant there witnessed the defendant’s action and went to intercept. The Police was called.

4.  Upon arrest, the defendant said under caution that he had entered the staircase and was trying to open the gate in order to steal some ladies’ shoes to satisfy his fetish.

5.  In the subsequent video recorded interview, the defendant explained that he had stolen shoes from a shoe cabinet placed in the same staircase earlier in January. He had also entered the same staircase to steal from the same shoe cabinet on 20th and 21st March but did not find any shoes to his liking.

6.  The gate in the staircase that the defendant was trying to open in August was installed after the said 3 incidents.

7.  The defendant entered the staircase as a trespasser on all 4 occasions with the intention to steal.

Previous convictions

8.  The defendant has some minor traffic convictions. For the purpose of sentencing in this case, he can be regarded as of previously clear record.

Mitigation

9.  The defendant was born in Hong Kong and educated up to Form 5 level. He is 26 and single. The defendant works at a small restaurant run by his family. Ever since a bankruptcy order made against him in July 2014, the defendant has been receiving a $3,000 monthly allowance from his family.

10.  Mr Lau for the defendant submitted in mitigation that the defendant committed the present offences out of character. He stole the shoes in order to satisfy his fetish for ladies’ shoes. The defendant would masturbate with the aid of the shoes that he had stolen.

11.  Mr Lau accepted that the guideline starting point for burglary of a domestic premises is that of imprisonment for 3 years, citing AG v Lui Kam Chi, CAAR 1/1993.

12.  Mr Lau, however, submitted that the circumstances surrounding the defendant’s commission of the present offences are exceptional enough to warrant a departure from the said guideline starting point, relying on the case of HKSAR v Law Tin Yam, CACC 258/2010 to suggest that “sentencing guidelines must never obscure the individual facts and justice of a case”.

13.  Having heard from Mr Lau, I found that there are sufficient grounds to consider whether there should be such a departure. A psychological report, a psychiatrist report, a Probation Officer report and a Community Service Order report were called for.

Sentence

14.  Mr Lau very helpfully referred me to 3 District Court cases where Community Service Orders were imposed on a defendant who had pleaded guilty to one or more counts of burglary.

15.  In HKSAR v Choi Ka Hon and others, DCCC 1132/2010, the learned judge took into consideration the following when he sentenced the defendant to CSO. The defendant was 18 at the time of the commission of the offence and was of clear record. The offence occurred when he had come under the influence of a bad peer group. The defendant had demonstrated true remorse by his early indication of a plea of guilty and his immediate and unequivocal admission to the police, as well as giving information about the accomplices. The defendant had also given evidence for the prosecution against an accomplice. The defendant was willing to compensate the victim and had saved his pocket money for that purpose. The parents of the defendant had made exceptional efforts to get the defendant back on the right track and the defendant himself had returned to studying.

16.  The learned judge found that it was a wholly exceptional case and that the defendant deserved a last chance. The defendant was sentenced to 200 hours of CSO and to compensate the victim.

17.  In HKSAR v Tso Chi Keung (謝志強), DCCC 290/2010, the defendant committed 3 thefts and 1 burglary. The burglary was committed while the defendant was working as a computer technician. He stole an mp3 music player from a drawer of the business premises situated in the same building where he used to work. The defendant was 40 and of clear record. He suffered from depression ever since his mother passed away in 2007, and after his wife had an abortion in 2008. The defendant started to steal from his colleagues afterwards. It was the psychologist’s opinion that the defendant’s failure to seek help for his depression was a main factor contributing to his commission of the offences. The learned Deputy District Judge considered the case of HKSAR v Chow Chak Man, CACC 447/1998 (where the Court of Appeal gave guidance on offenders best suited to be dealt with by way of CSO), the fact that the defendant had a clear record, as well as his background, and decided that CSO was the proper sentence to be imposed.

18.  In HKSAR v Chow Chak Man, the Court of Appeal first confirmed that even in a case of burglary, the court is not precluded from imposing a community service order. The Court then proceeded to consider what type of offenders might be considered suitable for such an order:

“10. It is here that Ms Remedios's further submission, concerning the types of offender in respect of whom community service orders are appropriate, comes into play. Guidance on the matter was given by the Court of Appeal in R v Brown (1981) 3 Cr App R(S) 294, 295; it is helpfully reproduced at p.40 of Cross and Cheung (op. cit.). The guidance given in Brown indicates that the offenders who can be said to be best suited to community service orders will -

(1) be either a first offender, or one with a "light" criminal record;

(2) come from a stable home background, perhaps with a family;

(3) have a good work record - orders are not designed to encourage the lazy, or to show the idle, the errors of their ways;

(4) be in employment, or have a realistic prospect of such

(5) have shown genuine remorse; or

(6) present no more than a slight risk of re-offending.

It is to be observed that these characterisations are alternatives. Ms Remedios, however, submits convincingly that in fact that D1 appears to meet all of them.”

19.  The final case Mr Lau referred me to is the case of HKSAR v Chu Kam Yin (朱鑑賢), DCCC 658/2014. There the defendant pleaded guilty to 3 counts of burglary and was sentenced to 240 hours of CSO. The learned District Judge took into consideration that the defendant was 21, the fact that he had demonstrated genuine remorse, the small amount taken, and the fact that the victims had written in mitigation on behalf of the defendant for the court’s leniency.

20.  Turning to our case, I find the following strong mitigating factors present.

21.  The defendant made full admissions to the police upon his arrest. The crimes committed by the defendant in relation to counts 1, 2 and 3 would not have been easily solved without the defendant’s confession.

22.  The defendant had indicated his pleas of guilty at the earliest stage of proceedings.

23.  Full restitution had all along been offered by the defendant and will be made to the victims.

24.  The defendant only has a light conviction record.

25.  I find also that the circumstances surrounding the defendant’s commission of the offences exceptional.

26.  The defendant’s fetish was obviously the underlying reason for his commission of the present offences. According to the report of Mr Chan (Medical Officer), medication to treat depression or obsessive-compulsive disorder was prescribed and should provide some relief towards the defendant’s condition. Now that his fetish is known and being treated, the risk of re-offending should be greatly reduced.

27.  Last but not least, the defendant has continued to be in gainful employment working for his father’s catering business since pleading guilty to the charges in the present case.

28.  I find, therefore, that there are sufficient reasons to depart from the guideline sentence. I will sentence the defendant to 240 hours of community service on each of the 4 counts, to be served concurrently.

29.  The requirement of the CSO was explained to the defendant and he agreed to the imposition of the order.

30.  I further order that there be a compensation order in the amount of $43,500 to be made against the defendant. $5,000 from the defendant’s cash bail to be applied towards the satisfaction of the said compensation order, the balance of $38,500 to be paid within one week.