HKSAR v. LIU SHING YUK

 DCCC603 & 719/2009 (CONS)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 603 & 719 OF 2009

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Reasons for Sentence

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1.  Defendant, you appeared as D1 in this case and pleaded guilty to one offence of attempted burglary, contrary to sections 11(1)(a) and (4) of the Theft Ordinance, Cap.210.  You admitted the Brief Facts and I convicted you.

2.  The facts were as follows.  At around 1.45 am on 14 May last, PW1 arrived at his home at No. 22C, San Yuk Tsuen, Sha Tau Kok Road-Leung Yeuk Tau, Fanling which is a three-storey house surrounded by a wall.  The ground floor of those premises was rented to the Caritas Lung Yeuk Tau Community Centre.  As PW1 approached the house, he saw two males on bicycles talking near the house.  He then saw you come out from a path next to the house and mount a bicycle to leave with the other two males.  PW1 intercepted all three of you and he told you that he would call the police.  You all fled at this point.

3.  PW1 then discovered one of the windows of the centre had been dismantled and left on the ground.  Shortly afterwards, he located you riding a bicycle near the house and intercepted you.  You admitted trying to steal from the centre but without success.  PW1 took you back to the house and called the police.

4.  A police officer arrived at about 2 am.  You were arrested and cautioned.  You admitted that you and two other males dismantled the window to see if there was anything to steal.  Later, in a video-recorded interview, you repeated this admission.  You said you had committed the offence because you had no money.

5.  D1, you are a man of hitherto clear record.  I adjourned the case for various reports at various stages.  These include the preparation of a probation officer’s background report, a psychological report and report as to suitability for community service.  You were not in fact found suitable for community service.

6.  In view of what was said in the first batch of reports, I then adjourned the case again for two psychiatric reports with a probation officer’s report.  This was with a view to making a hospital order.  Those reports deem you neither to be suitable for a hospital order nor for a probation order. 

7.  However, not without merit and at Mr Leung’s urging, I did adjourn the case for a further probation officer’s report as I was told that you were now willing to reconsider your refusal to enter a hostel placement.  That further report is before me.  It is fair to say that it contains a recommendation for probation, but it is a very half-hearted recommendation in my opinion.  It strikes me as being neither positive nor optimistic.  I am told you are prepared to accept probation.

8.  At each stage of the hearings, Mr Leung entered mitigation.  He told me that - and this is supported by reports - that you are a young man who suffers from mild-grade mental retardation and psychiatric problems.  From the reports, it is clear you have had a difficult life with learning difficulties.  Your parents seem to have done their best to support you in a positive way, but there have been behavioural problems throughout your life.  You have undergone a programme of training which you would continue with the Hong Chi Association, doing basic cleaning work.

9.  Mr Leung, whilst doing his best for you, was very realistic in accepting this is a serious offence and that the recommendation in the probation officer’s report for a probation order was not the most positive.  Nevertheless, he asked me to give you one last chance.

10.  I note that you have spent approximately two months in custody already.  I note also that the court has the benefit of many reports, in this case an unusual amount.  This has been so that I could have the fullest possible picture of you. 

11.  I turn now to the sentence.  It is well-established for this type of attempted burglary or indeed a full burglary, a starting point of approximately 30 months is the usual sentence.  You are a young man with a clear record.  You suffer from mild-grade mental retardation and psychiatric problems.  I do note that the latter is not serious enough to warrant your detention under a hospital order.  The offence itself could not be said to have been sophisticated, and nothing was actually taken.  I note that at the scene, you were extremely co-operative both with PW1 and with the police.  You made full and frank confessions throughout and pleaded guilty before this court at the first available opportunity, thereby expressing your remorse.

12.  However, this is a serious offence.  You removed a window; you entered premises with intent to steal.  The only reason that nothing was stolen would appear to be the fact there was nothing worth stealing.  Were I to impose a probation order, this would be an unusual course for this type of offence.  I do note that the recommendation is, as I have already said, very half-hearted and neither positive nor optimistic.  I am not convinced that you are sincere in your agreement to work with the probation officer nor to enter the hostel.

13.  Given the nature of the offence and all the factors taken into account, I am of the opinion therefore that a prison sentence is the only option.  However, there are several mitigating factors.  I note your mental problems, your clear record, your co-operation at the scene with both PW1 and the police, and the lack of sophistication in the offence itself.  I also note your relative youth.  I therefore take as a much lower starting point one of 21 months’ imprisonment reduced by one-third for your plea of guilty.  You will go to prison for 14 months.