HKSAR v. WONG CHI SHING

DCCC 1155/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1155 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a single charge of burglary committed on 25 October at a premises in Kwai Chung in the New Territories, where $10,000 was stolen.

2.  The facts are quite simple.  

3.  The premises where the money was stolen from was what is described as an eatery shop on the ground floor of a premises in Tai Loong Street, Kwai Chung in the New Territories.  That would make this a commercial, non-residential premises.

4.  On 25 October around noon o’clock, the business was not yet opened and a person was preparing food in the kitchen, but they had left the roller-shut gate of the eatery half-open. 

5.  That was when, at about 12.45, the defendant was seen inside the premises and he was told the business was not opened yet and he left.  But the witness then checked the cashier drawer and found that some $10,000 in notes that had been placed in the drawer earlier that morning was now missing, and the CCTV recording then showed the defendant had entered the premises, opened the cashier drawer, taken something from it, and then left.

6.  The defendant was found nearby the Jockey Club Off- Course Betting Centre in the late afternoon and identified, and under caution he admitted entering the premises and stealing, he said, $1,700 from it, putting money into his Hong Kong Jockey Club account.  He was found with a Jockey Club electronic shroff card and Jockey Club betting slips.

7.  Later, he made a more detailed admission, admitting taking money from the cashier drawer.  At the time, he denied stealing the 10,000, but in the facts today or previously, he has admitted entering as a trespasser into those premises and stealing the $10,000.

8.  The defendant is aged 52 years old.  He is educated up to a Primary 6 level.  He is a divorced man.  He has a daughter aged 30 who lives separately.  His father died in 2014 and he has been living in what is described as the Ho Ho Gerocomy Centre.  The defendant does have various medical problems, which I will go into in a minute. 

9.  The defendant also has 21 previous criminal convictions dating all the way back to 1984.  The defendant of late has been involved in offences of dishonesty.  Particularly in 2013, he committed a similar offence of burglary where he received a 1-year sentence, which was served consecutively to other offences he had committed - another offence of going equipped for stealing and theft.

10.  He also committed a further theft in December of 2014, where he was sentenced to a further 4 months’ imprisonment.  In May of 2015 he received a sentence of 10 months’ imprisonment for attempted theft.  So the defendant has a poor record for dishonesty and also a previous conviction for this particular offence.

11.  The defendant has suffered a number of medical problems in the past. 

12.  There is a report from the Lai Chi Kok Reception Centre dated 2 May.  The defendant has suffered, since 2006, from bipolar affective disorder.  He has had what is described as a cerebrovascular accident, which is a stroke, and there is follow-up in the Tuen Mun Hospital. He was admitted to the hospital of the Lai Chi Kok Reception Centre and was discharged in October of 2016, but he is currently under treatment.

13.  There is a further report from the Department of Psychiatry of Kowloon Hospital, which concludes the defendant has suffered psychiatric problems resulting from the abuse of drugs and alcohol.

14.  He is currently prescribed a number of medications.  He is described as having a tendency for excessive gambling, a history of drug overdose, and he has a history of stroke, which he is currently under treatment and follow-up.

15.  The defendant in a letter to me has set out some of the difficulties he encounters in the custodial environment as a result of having suffered the stroke in mid-October last year.  He currently is taking a number of medications for that as well as for his psychiatric condition.

16.  The defendant clearly is in an unfortunate position.  However, I can be confident that both his cerebrovascular and also his psychiatric problems are well managed in his current environment.

17.  Now, I turn to the offence that the defendant has pleaded guilty to on this occasion.

18.  The offence is indicted and described as burglary.  There are clear guidelines for the commission of burglary offences. This is what can be described as commercial premises and non-domestic premises.  For a person of clear record who commits this offence, after trial a starting point of 30 months’ imprisonment can be imposed. 

19.  The argument here is that the defendant has committed what is in effect a walk-in theft.  It certainly constitutes a burglary, because the defendant entered as a trespasser, but the offence itself is an opportunistic stealing from the premises, taking advantage of the fact the roller-shut gate was open.

20.  So there are no particular aggravating factors. There is no great planning.  There is no force used to enter the premises or damage to the premises, and the money stolen, it is submitted, is not a large sum.  And, finally, the defendant was clearly the person who committed the offence.  He has been recorded doing it.

21.  And all these factors, it is submitted, can allow the court some flexibility on imposing a starting point for sentence for this particular kind of offence, and it is also argued that the defendant’s particularly unfortunate psychiatric and medical history should allow the court some flexibility in determining the starting point for sentence.

22.  As far as the offence is concerned, I take on board the submission that there are no aggravating factors in the commission of the offence.  There is one aggravating factor in the fact that the defendant has a previous conviction of the same offence, which would appear to show that the sentence imposed in 2013 was insufficient to deter the defendant from committing offences of this nature.

23.  So, in determining the starting point for sentence, there must be some consideration of the fact that the defendant is a person with a previous conviction for this offence and also for other offences of dishonesty, such as theft.

24.  Having taken all these factors into account, I consider that there can be some flexibility in determining the initial starting point due to the nature of this kind of offence, this what is effectively a walk-in burglary, an opportunistic approach.

25.  What I shall take is an initial starting point of 24 months’ imprisonment.

26.  The aggravating factor of the defendant’s previous conviction will raise that starting point for sentence to one of 27 months’ imprisonment. 

27.  The defendant is entitled, because of his indication of early plea of guilty, to a one-third discount from that, and, in my calculation, leads to a final sentence on this offence of 18 months’ imprisonment.