HKSAR v. KWOK HON MAN

DCCC 276/2023

[2024] HKDC 1590

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 276 OF 2023

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REASONS FOR SENTENCE

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1.  Mr Kwok was originally charged with one charge of Burglary, contrary to section 11(1)(a), (2)(c)  and (4)  of the Theft Ordinance, Cap 210.

2.  On plea day, through counsel, he indicated a plea of not guilty to the charge but guilty to an offence of criminal damage.  Prosecution did not accept the alternative plea.  Trial dates were fixed as a result.

3.  Eight days before the trial commencement date, defence wrote to the court indicating the prosecution will after all accept a plea to criminal damage.

4.  Hence, Mr Kwok appears before me, faced with an Amended Charge Sheet containing only one charge of Criminal Damage, contrary to sections 60(1)  and 63(2)  of the Crimes Ordinance, Cap 200.  The particulars are that he, on 15 July 2021, at No 60 Luk Mei Tsuen, Sai Kung, New Territories in Hong Kong, without lawful excuse damaged one microwave oven, one electric oven, one refrigerator, one door lock and one heater, being property belonging to another, intending to destroy or damage such property.

5.  Mr Kwok pleaded guilty to the amended charge.

Facts admitted by Mr Kwok

6.  PW1 lived in a house (“the Premises”)  in Luk Mei Tsuen, Sai Kung.

7.  PW1 and Mr Kwok were acquaintances.  They often went to each other’s home for a chat.  Mr Kwok knew PW1 would normally keep his front door unlocked and he would enter the Premises on his own when he knew PW1 was at home.

8.  In early May 2021, PW1 borrowed $1,200 from Mr Kwok.  PW1 repaid Mr Kwok on 15 June 2021.  In early July 2021, PW1 borrowed $850 from Mr Kwok; Mr Kwok demanded PW1 to repay on 15 July 2021.

9.  On 15 July 2021, at around 6 pm, Mr Kwok called PW1 asking him to repay the money.  PW1 replied he had no money.  Mr Kwok said in that case, he would go to PW1’s home to find him.

10.  Around 7 pm the same day, PW1 returned home and found that although the iron gate of the yard was still locked, the front door was left open.

11.  On inspection, PW1 found some of the things kept inside his home were damaged (to the total value of $4,330), namely:-

(a)  The glass door of a microwave oven;

(b)  The glass door of an electric oven;

(c)  The racks on the door of a refrigerator;

(d)  The door lock of a storeroom; and

(e)  A heater.

12.  CCTV installed near the Premises captured the following actions of Mr Kwok on 15 July 2021:-

(a)  At 6:06 pm, Mr Kwok arrived outside the iron gate with a spanner in hand; he climbed over the fence of the yard before kicking open the front door to enter the Premises;

(b)  At 6:07 pm, he came out of the Premises, still with a spanner in hand, and talked on the phone; he stayed near the front door;

(c)  At 6:08 pm, he entered the Premises again with a spanner, while talking on a phone; later, he came out again, with a phone and a spanner in each hand respectively;

(d)  At 6:09 pm, he repeated the same actions as at 6:08 pm;

(e)  At 6:10 pm, he re-entered the Premises; and

(f)  At 6:12 pm, he came out again, with a spanner; he climbed over the fence of the yard and left.

13.  Subsequently, on an unknown day, PW1 bumped into Mr Kwok on the street, and he repaid Mr Kwok the sum of $850.

14.  On 8 September 2022, Mr Kwok was arrested for criminal damage.  Under caution, he admitted he broke PW1’s things out of impulse to vent his anger, as PW1 owed him money.

15.  In a cautioned interview conducted on the same day, Mr Kwok stated:-

(a)  PW1 owed him $1,200 but only repaid $400; he talked with PW1 many times but PW1 still did not repay him the outstanding amount;

(b)  On one occasion, he had a little drink, and got mad when he thought about the matter; he went to the Premises and broke PW1’s things;

(c)  On the day of the incident, he first shouted PW1’s name outside the Premises; no one responded, so he climbed over the wall to try to find PW1; and

(d)  He forgot what he had broken but he did it out of impulse.

16.  Mr Kwok now admits that on the day in question, he entered the Premises, and without lawful excuse destroyed or damaged the property listed in the Particulars of Offence, intending to destroy or damage the same.

Criminal record

17.  Mr Kwok has 3 previous convictions none similar.  He has never been sent to prison.

Antecedents

18.  Mr Kwok is almost 42 years old (38 at the time of the offence); he was educated up to secondary level in Hong Kong.  He is working on and off.  Mr Kwok lives with his parents and his wife in private housing in Sai Kung.

Mitigation

19.  Mr Lam Shun Chiu of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Kwok.  The following is a summary of the mitigation submissions.

20.  Mr Kwok’s wife, mother and aunt were in court to give him support.

21.  Mr Kwok attended school up to Form 3 level.  After leaving school, Mr Kwok attended training course organized by Construction Industry Council and became qualified as a cement sand mortar worker.  Besides construction work, he also took up work in different capacities eg as casual worker, delivery worker, air conditioner repair worker etc.

22.  Mr Kwok is married, with an 8 year old son being taken care of by the latter’s maternal grandparents as both Mr and Mrs Kwok are working.

23.  Mr Kwok is a long-term mental patient.  According to a psychiatric report dated 24 November 2023, Mr Kwok was suffering from Schizophrenia and was on regular medication injection with relatively stable mental state. Nonetheless, Mr Lam asked the court to call for, among other reports, an updated psychiatric report before sentencing Mr Kwok.

24.  Mr Lam submitted that, according to instructions, there have been quite a number of times that Mr Kwok had to be sent to hospital for observation and/or treatment after drinking too much alcohol.

25.  Mr Lam further submitted that in the current offence, influence of alcohol would have had a part to play in the matter.

26.  As to the reason Mr Kwok was carrying a spanner with him at the time of the offence, Mr Lam submitted that it was a working tool and was brought along in case the front door was locked.

27.  Mr Kwok accepted his responsibility but claimed he committed the offence out of impulsiveness.  It is submitted that the fact that Mr Kwok went in and out of the house several times indicated he was in an agitated mood at the time.

28.  It is submitted that Mr Kwok did not have propensity for violence and the present offence should be an isolated incident.

29.  Mr Kwok offers to pay compensation to the victim to the tune of $4,330. Through the intermediary of the police, that sum was in fact fully paid to the victim’s young brother receiving it on behalf of the victim (confirmed by the prosecution).

30.  Mr Lam suggested a starting point of 9 months’ imprisonment but asked for a suspended sentence in light of the fact that the offence was an isolated incident under misconceived anger caused by clouded judgement induced by alcohol.  In addition, the loss suffered by the victim has been fully and voluntarily made good by Mr Kwok.

31.  Mr Kwok recently had an operation done on his bladder.  The surgical wound is still healing.

32.  Mr Lam submitted on behalf of Mr Kwok a mitigation letter written in Chinese by his wife.  The contents are generally that Mr Kwok was the economic pillar of the family and contributed to the living expenses of the family; that he was on good terms with his son; and he knew he had done wrong.  She asked for a lenient sentence for her husband.

33.  Finally, Mr Lam submitted the full 1/3 sentencing discount ought to be given to Mr Kwok because (as was disclosed by the prosecution)  as early as 1 June 2023 the defence had already offered to plead guilty to criminal damage which offer was rejected before trial dates were fixed for the original charge of Burglary.

34.  On obtaining a copy of the two psychiatric reports on Mr Kwok, Mr Lam further submitted that the reports have been read and explained to Mr Kwok; that the family members all hope that Mr Kwok would be sentenced as leniently as possible.

Psychiatric reports

35.  In order to see if a Hospital Order might be suitable for Mr Kwok, I called for two psychiatric reports for the purpose of section 45 of the Mental Health Ordinance, Cap 136.

36.  The reports came back to say that Mr Kwok has been/is diagnosed with Paranoid Schizophrenia but in remission; that there is no active psychotic symptom and he is not psychotic; that inpatient treatment is not warranted/necessary.  Both reports recommended outpatient follow-up only.

Sentence

37.  I have seen the photos contained in a photo album submitted by the prosecution without objection from the defence.  They add little to what has been admitted by Mr Kwok.

38.  Mr Kwok was willing to plead guilty to the offence of criminal damage a long time ago but it was not accepted by the prosecution resulting in the fixing of trial dates for the charge of burglary.  Hence, I shall not hold the late plea to the amended charge against Mr Kwok as far as sentencing discount is concerned.  I will give him the usual 1/3 sentencing discount as if the prosecution had accepted his alternative plea in plea court and gone on to amend the charge to one of criminal damage resulting in a date being fixed for plea and sentence rather than for trial.

39.  I am satisfied that Mr Kwok knew what he was doing at the time of the offence and knew that it was wrong.  Alcohol might have played a small but insignificant part in the commission of the offence.

40.  I take into account the fact that Mr Kwok has fully and voluntarily compensated the victim’s loss.

41.  I take into account the offence could have been speedily dealt with in the magistrates’ court had the prosecution proceeded with criminal damage from the start.

42.  Weighing everything in the round, I adopt a lenient starting point of 9 months’ imprisonment as urged by Mr Lam.  As said, I will give Mr Kwok the full 1/3 discount.

43.  There are no other mitigating factors of weight to justify another sentencing discount; nor are there sufficient grounds to suspend the sentence.

(Mr Kwok, please stand)

44.  The sentence for Mr Kwok is 6 months’ imprisonment.