HKSAR v. CHAN YIN MAN

DCCC 1007/2020

[2021] HKDC 772

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1007 OF 2020

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Burglary". He burgled a unit in a commercial building by taking away an air purifier.

Summary of Facts

2.  The burgled premises ("the Office") are situated at Room B, 10^th Floor, Pearl Oriental Tower, No.225 Nathan Road, Kowloon ("the Building"). The Office was occupied by a company which offered training courses ("the Company").  The Company also rented space on 3 other floors of the Building and used the Office as one of its classrooms.

3.  The entrance of the Office consisted of a glass door secured by a passcode lock. The Company did not disclose the passcode to its students.  The glass door would be opened by a staff member about 30 minutes before class.  An air purifier was placed on the tutor's desk.

4.  A class was scheduled for 7:00 p.m. on 6 August 2020.  Mr. Yu (PW1), a staff member of the Company, opened the glass door of the Office around 6:30 that evening.  About 5 minutes before class, Mr. Kwok (PW2), tutor of the 7:00 p.m. class, arrived at the Office.  Seeing that the tutor's desk was a mess, PW2 immediately informed PW1.  PW1 came to the Office and found the air purifier missing from the tutor's desk.

5.  CCTV footage revealed that around 6:33 p.m. on 6 August 2020, a male in a red T-shirt and a pair of green camouflage shorts (later identified as the defendant) entered the Office.  The air purifier was then placed on the tutor's desk.  About 6:40, the defendant took the air purifier from the tutor's desk and left the Office.  About 6:42, he entered Lift No.2 of the Building carrying with him the air purifier.

6.  Police officers arrived at the Building around 7:11 in the same evening.  They found the defendant at the staircase on the 2^nd Floor of the Building with the air purifier next to him.

7.  PW1 later confirmed that the air purifier seized by the Police belonged to the Company. He also confirmed that only students enrolled in a course offered by the Company were allowed to enter a designated classroom.  On 6 August 2020, the defendant was not a student of any course offered by the Company.  He entered the Office as a trespasser and stole from there the air purifier found on him.

Mitigation & Sentence

8.  The defendant is 40 and has 4 conviction records, which included 1 "Theft" offence. Defence counsel Ms. Chan informed me that the defendant is married but has not been in contact with his wife for a few years. He studied up to F.5 in Hong Kong and obtained an associate degree in the United States. He returned to Hong Kong in 2012, and has taken up various jobs. Prior to the present case, he worked in a gas station earning about $12,000 per month.

9.  In mitigation, Ms. Chan submitted that the defendant has a history of drug abuse. He suffers from substance-induced psychosis[1]. The 2 psychiatric reports obtained by the Principal Magistrate on the defendant's fitness to plead[2] indicated that he did not require inpatient treatment. Without denying mens rea, Ms. Chan submitted that the defendant took drugs 2 days before the present offence. On 6 August 2020, he went into the Building and used the washroom on the 10^th Floor. When he saw the air purifier, he heard a voice in his head saying that it was poisonous. He then took it away. Not knowing what to do with the air purifier, he sat on the floor at the staircase until the Police found him.

10.  The defendant has only himself to blame. He knows all too well that the root of his problems is drugs. Even if what he said is true, I am satisfied that his psychiatric condition was self-induced; and it did not affect him to such an extent that he did not know what he was doing when he took the air purifier away from the Office.

11.  The normal starting point for non-domestic burglary is 2.5 years' imprisonment. Although no actual breaking-in was involved, the Office being left unattended did not in any way serve as an invitation for the defendant to go in there. In any event, for his benefit, I find that there is a slight element of "opportunistic burglary". I consider a starting point of 27 months' imprisonment appropriate and just for the present charge. With the timely guilty plea, the sentence is reduced to 18 months. Apart from this, I see no other mitigating factors which warrant any further reduction of the sentence. I sentence the defendant to 18 months' imprisonment.

12.  The defendant needs to stay away from illicit drugs. Both psychiatrists recommended him to continue with outpatient psychiatric treatment for his drug abuse. I invite the Commissioner of Correctional Services to arrange for the defendant to continue to receive the necessary psychiatric treatment as well as treatment for his other health issues.