HKSAR v. LAI KWAI SANG

DCCC 60/2021

[2022] HKDC 517

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 60 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant pleaded guilty to a charge of burglary.

2.  At about 8 pm, on 23 September 2020, PW1 placed $1,000 cash in a basket and hid it inside the shop.  He shut the rolling shutter when he left the stall.  The roller shutter could not be locked.

3.  Next day when he returned to the stall, the $1,000 had gone missing.

4.  CCTV captured the defendant pulled up the roller shutter at around 3:57 am on 24 September 2020 and ransacked the stall before leaving at 4:03 am.

5.  PW1 who was the manager of the stall recognized the defendant as he was formerly employed by the group as a transport worker in another branch.  However, his employment only lasted for one week.

Criminal record

6.  The defendant has 11 court appearances resulting with 12 criminal convictions from 1990 to 2012.

7.  Those convictions related to drugs offences, robbery, theft, AOABH, fighting in public place, criminal intimidation and criminal damage.

8.  His last conviction was in 2012 for an offence of burglary.

Personal background and mitigation

9.  The defendant is 43 years of age; his parents were divorced when he was 5 years old.  His elder brother passed away in a car accident when he was 18 years old.  His last employment was an operation manager with a vegetable wholesaler, earned $25,000 per month.

10.  The defence said that: -

(a)  the defendant did not use any tools/equipment to break into the stall;

(b)  there was no one in the stall at the material time;

(c)  the defendant indicated his guilty plea one week prior to the trail date;

(d)  hence, the defendant is entitled to a 25%.

Sentence

11.  In normal circumstances, non-domestic burglary sentence is one of 2 years and 6 months imprisonment.  When it is an opportunistic burglary, the sentence could be lower.

12.  In the present case, two psychiatric reports were called in 8/2021 and both reports said that the defendant suffered from psychosis with history of illicit drug use and inpatient treatment is warranted for his own benefit and the society as a whole.  At that time, doctors recommended 4 to 6 months treatment in Siu Lam Psychiatric Centre.

13.  I urged on the safe side to call for two further reports regarding the mental status of the defendant since he has received treatments in Siu Lam from 8/2021.  That means he has received treatment for about 9 months.

14.  Today, the two psychiatrist reports are ready before me, both psychiatrists said that his mental state has showed gradual improvement and he was less pre-occupied with his delusional beliefs. Nonetheless, he is still actively psychotic and his insight into his mental illness remained limited.

15.  Both psychiatrists were of the view that:

“he required further inpatient psychiatric treatment including further medication titration, to optimize his mental state for his own benefit and safety of others”.

16.  They both recommended a Hospital Order for a period of 3 months.

17.  However, the defendant urged this court through his counsel to reduce the Hospital Order from 3 months to 2 months as he had already been detained for about 19 months.  He said that in reality, he had served his sentence if he received the usual sentence for burglary.

18.  In his own letter to this court today, he said that he is genuinely remorseful.

19.  I told the defence counsel that I am not in a professional position to judge how long the defendant should receive his treatment in the Siu Lam Psychiatric Centre.  Moreover, the treatment is for his own good and to the society.

20.  In view of the fact that the defendant has been remanded since September 2020 and has received treatment in Siu Lam since August 2021, I do not see any reason why I should not adopt the recommendation from the 2 psychiatrists.

21.  In such circumstances, pursuant to S45 of the Mental Health Ordinance, I order the defendant to be remanded in Siu Lam Psychiatrics Centre for treatment for a period of 3 months.