HKSAR v. LEUNG MAN LING

DCCC 260/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 260 OF 2013

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Reasons for Sentence

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1.  You have pleaded guilty to a single offence of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210.

2.  You admitted the brief facts and I convicted you on those facts. 

3.  What happened is as follows.

4.  PW1 and her son, PW2, reside in a flat at Hing Tat Mansion, Ngau Tau Kok Road, Kowloon.  You became PW2’s girlfriend and you moved in and in 2009 you gave birth, and I now know that was to a son.  PW1 and your baby occupied one bedroom, and you and PW2 the other bedroom.  In 2012, you and PW2 broke up but you refused to move out of the premises.

5.  On 26 October of last year, PW1 and PW2 moved out after an argument with you.  PW1 locked her bedroom and told you not to enter and take her belongings.  She left behind a black handbag and a red handbag.  PW1 and PW2 then sought legal ways to evict you.

6.  On 23 January of this year PW2 went to the premises with the police, PW1 was also there, to ask you to move out.  There PW1 found the lock of her bedroom broken, her room had been ransacked, and the two handbags were missing.

7.  The black handbag was found in your closet and the red one was being held by you.

8.  Under caution, you admitted kicking open the door as you wished to find toothpaste, and then refused to say anything else. 

9.  The bags were worth around $8,000 and it cost $400 to repair the lock.

10.  There are before me two excellent psychiatric reports.  Both psychiatrists tell me that you are fit to plead and each of them recommends that you receive treatment under a Hospital Order at Siu Lam in accordance with section 45 of the Mental Health Ordinance, Cap.136.  You were found to be suffering from schizophrenia with other symptoms.  They feel that they can assist you.

11.  You accept those reports, I understand, and agree with that recommendation.

12.  You have admitted to six previous convictions, two of which related to dishonesty. 

13.  On your behalf, Mr Ng entered short but persuasive mitigation.  He told me that you are 32 years of age, you were educated to Form 3, and Hong Kong born.  Currently, you are unemployed but you had in the past worked in a sauna, in sales, and in a restaurant.  He described the offence as a semi-family matter, that after the commission of the offence you had made no effort to leave the premises, and when the police arrived you were still there.  He told me that you are very remorseful and your fondest wish now is to go home and begin to care for your 3-year-old son, whom I understand is in foster care.  You are begging this court for leniency, you are concerned for your son, and also for your own health.  I am told that you are agreeable to and accept a Hospital Order in the terms I have outlined.

14.  Mr Ng told me that he had certain sentencing authorities which he could refer to but I in fact said I regarded this as a wholly exceptional matter and intended to follow the recommendation, for reasons which I shall later give.

15.  I turn now to the sentence itself.

16.  This is, as I said, a wholly exceptional matter.  It is the most technical of burglaries.  It is more akin to theft. Whilst I accept you broke into the bedroom, you were already in the premises. The matter arose from unhappy domestic circumstances and your split up with PW2.  I must recognise and accept that your unreasonable behaviour in refusing to leave premises that were not yours is a cause to a large extent. Nonetheless, having taken the goods that you knew you should not have taken, you made no effort to leave the premises, nor to dispose of those goods. Indeed, you were found holding one handbag and the other was in your closet. After the police came you were co-operative.  I do note that the bags have been returned to their owner, or will be returned to their owner once I make the order. The only loss is the payment for the repair, a sum of some $400.

17.  I note and respect the opinion of the two psychiatrists, both of whom have come to the conclusion that you need inpatient treatment in Siu Lam for a period of 3 months.  The reason for this conclusion is plainly before me in their reports, logically argued, and I believe, correctly.

18.  In coming to my conclusion, I have to and do take into account that you have suffered approximately 3½ months’ loss of liberty.  That is equivalent to a substantial sentence in itself.

19.  This is clearly not a case where the normal tariff should apply.  The normal tariff for burglary of domestic premises is one of 3 years reduced to 2 years for a plea of guilty.  The rationale behind that tariff is that this presupposes a stranger or someone not part of the family breaking into premises and taking goods.  That is very far removed from the present situation.  You were in fact at one stage a part of that family.  You are the ex-girlfriend of PW2 and could be regarded as a common law wife, being the mother of his son.

20.  I take also into account the plight of your son, who is in foster care, and your wish to assist him. 

21.  It is a matter of note that you yourself recognise that you have problems and you need help.  Prison would not provide the help that you need.  To impose a substantial prison sentence would in my opinion be wrong in principle and counter-productive.  I do face squarely the fact that you do have a very poor record though this is the first offence of burglary that you have committed. 

22.  It is important that you get away from drugs and receive proper treatment for your schizophrenia.

23.  For these reasons I regard this as a wholly exceptional case calling for a wholly exceptional sentence.  I therefore propose to follow the recommendation for a Hospital Order under section 45 of the Mental Health Ordinance, Cap.136.  That will be for a period of 3 months.

24.  Do you understand that?

DEFENDANT: Yes, I do.