HKSAR v. CHOI KWAN KIN AND ANOTHER

DCCC 745/2021

[2022] HKDC 47

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 745 OF 2021

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REASONS FOR SENTENCE

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1.  D1 and D2 pleaded guilty to a charge of burglary.

Summary of facts

2.  At about 9.56 pm on 22 March 2021, CCTV captured D1 and D2 entered into the Yau Tsim Mong Multicultural Activity Centre.  They left the center with a black recycle bag.

3.  PW1 found 3 computer laptops (HK$14,150 in total)  and one mobile phone ($2,598)  were missing.

4.  Both defendants were arrested on 11 May 2021.  They both admitted entered the center and stole some laptop computers and a mobile phone.  D2 further admitted that all the stolen items were sold for about $2,000 to $2,500.

Criminal record

5.  Both D1 and D2 are 23 years of age and they have clear record.

Mitigation

6.  D1 was drunk at the material time when he committed the offence.

7.  D1 graduated from the University of Queensland and returned to Hong Kong to work as a trainee in a Bank.

8.  D1’s letter told me that he regretted for what he did.  He knew that he ruined his future by committing such a serious offence.

9.  D1’s parents were shocked to learn that D1 had committed the present offence as there is no financial pressure from the family.  The family runs a furniture shop and they have good business.  D1’s sister also wrote a letter to this court to support her brother.

10.  D1 was diagnosed to suffer from ADHD from a young age, he stopped receiving treatment since 2010.  He suffered from a depressive mood because of the nature of his work.

11.  D1 had devoted his leisure time to do volunteering work after he returned to Hong Kong when he finished his studies in Australia.  I have been shown a copy of record for his contribution of taking up volunteering works to the district counsellor in 2021 for 46 hours.  There are also other certificates to show to this court of his volunteer works before he left Hong Kong to Australia.

12.  D1 and D2 had known each other since secondary school.

13.  D2 came from a broken family.  His parents separated when he was 7 years old and he lived with his mother with rare staying access with his father. When he committed the present offence, he was 22 years old.

14.  D2 had poor academic achievement.  He asked his father to send him to study in the United Kingdom in 2016, but he could not catch up with the studies, he dropped out and returned to Hong Kong in 2019.

15.  D2’s father had written 2 letters to this court and I can see that he loves D2 dearly and he is determined to bring D2 into the right track.  He visited D2 daily while this court remanded D2 pending pre-sentencing reports.

16.  At the early stage after the arrest, D2’s family had prepared a bank draft to pay restitution to the Centre.  I was also told that D1’s family contributed half share of the restitution.  The prosecution confirmed that they have received the cashier order to the NGO.

17.  In mitigation, D1’s counsel referred to the case of HKSAR v Chow Chak Man and Another [1999] 3 HKLRD 37 that on appeal D1’s sentence was substituted by a CSO order bearing in mind that D1 was convicted after trial.  The Court held that D1 played a minor role although there was no exceptional ground in that case.

18.  As stated in HKSAR v Wan Ka Kit [2006] 3 HKLRD 9 that:-

“We emphasis once more that other than in the most exceptional cases, a community service order will rarely be appropriate for burglary or attempted burglary.”

Pre-sentencing reports

19.  This court called for psychiatric and psychology reports, CSO, DC and YOAP reports on both defendants.

Psychiatric/Psychologist reports of D1

20.  In a gist, D1 has adjustment and mood problems, psychiatrist recommended that he continued to receive out-patient treatment for his depression.

21.  Psychologist said that he is immature, an introvert and self-center with low self-esteem.  The clinic impression of D1 was that:-

(a)  He was reckless under peer influence.

(b)  He lacks of insight into his problem.

(c)  He failed to consider consequences of his behavior.

(d)  He suffered from depression due to the present offence.

(e)  He committed the present offence out of greed and impulse.

(f)  His risk of reoffending was low.

Detention Center, CSO and YOAP reports

22.  Detention report said that D1 is medical unfit to attend the Detention Centre training due to his injuries suffered as a result of a car accident in 2018.  D1 also admitted that:-

“He committed the offence out of recklessness and had not considered the serious consequences of breaching the law.”

“He claimed that he dared to take criminal action under the influence of alcohol.”

23.  As to the CSO report, it stated that:-

“… he gave no excuse and attributed his wrongdoings to his greediness and playfulness.”

“… he also admitted that he had underestimated the seriousness of his law-breaking act.”

24.  Looking ahead, he planned to work in his father's business.  The Probation Officer considered that D1 is suitable to perform community service order. 

25.  However, the Chairman of the YOAP stated otherwise: -

“Despite his verbal remorse and promise to lead a decent life. In the Panel interview, D1’s reflection of his issues remained superficial. Having considered his weak law-abiding attitude and the serious nature of his present offence, the Panel comes to the view that he is unsuitable for rehabilitation program in the open setting community while the assessment report of the Correctional Services Department has confirmed that he is unfit for Detention Centre program. Whereas, a term of custodial sentence can facilitate him to make some reflections on his recklessness. Therefore, an incarceration sentence is considered to be more effective measure to enhance his sense of lawfulness.”

Psychiatric/Psychologist report

26.  As to D2, psychiatrist said that he did not suffer from any form of mental illness.

27.  Psychologist’s view was that he was reserved and evasive.  His relationship with his family appeared to be detached.  He was a reserved, avoidant and low self-esteemed person.  He lost confidence in himself and had a fear of failure.

28.  D2 told Dr. Pau that: -

“… he felt excitement and fear while committing the offence.”

“… he thought that theft was a minor offence, legal consequence not be serious if he was caught.”

29.  The probation officer did not recommend D2 for CSO because he lied about his cannabis taking history.  It was as a result of the urine test during his remand then D2 told the truth.

30.  He expressed to Dr. Pau that he felt excitement and fear while committing the offence.  Treatment targeting at his mood management, problem-solving, prevention of reoffending is recommended.  His chance of re-offending is low/moderate.  However, with his family support, Dr. Pau considered that “it is a protective factor for re-offending”.

31.  The YOAP report also informed this court that: -

“… the medical officer is of the opinion that D2 is a drug dependent and medically unfit to fully participate in the Detention Centre program.”

Further mitigation

32.  Both D1 and D2 counsel advance further mitigation after receiving the reports.

33.  As to D1, defence counsel urged this court to impose a CSO order.  However, I noticed that the probation officer did not have any specific reason for such a recommendation excepted that the defendant had expressed remorse.

34.  D1 counsel then further urged this court to impose a suspended sentence. I refused as there is no exceptional circumstance to justify such a sentence. If I do, I sent a wrong message to the public.

35.  As to D2, the defence counsel urged this court to adjourn this case for DATC report. I considered it unnecessary for 2 reasons: -

(a)  because D2 can still receive treatment when he is serving his imprisonment term.

(b)  YOAP report recommended a period of imprisonment.

36.  A lot of resources and preparation works have been done, including a number of reports prepared by doctors and various professionals before sentencing the two defendants before me.  To that, I am most grateful for their time and assessments.

37.  It is clear to me that both defendants are not suitable to be sentenced to the detention centre or community service order.  Although the probation officer said that D1 is suitable for CSO, there is no obvious reason for such a recommendation while the YOAP had made it very clear the reasons why D1 is not suitable, I do not need to repeat that.

38.  As to D2, he started to take cannabis since 2018 when he studied in the UK.  

39.  To this end, the only alternative sentence is a period of imprisonment term.

40.  It is well settled that non-domestic burglary attracted a sentence of 2¹/2 years.  However, as stated in the case HKSAR v Sim Ka Wing CACC 450/2000 that the conventional starting point can be lowered in the case of the opportunistic burglar, akin to the sneak thief who walks into an open office to steal whatever he can find.

41.  In the present case, I have the opportunities to view the CCTV, the back door leading to the center is located on a street level of which there are cars driving along, pedestrians walking past.  It is not located on a back lane or an inconspicuous corner.

42.  Both defendants could enter the NGO Center without breaking in.  I accepted that no tools/violence were involved, there was no planning/premeditation.

43.  In mitigation, I have been informed that both defendants are prepared for restitution after their arrest.

44.  It is accepted by the defence counsel for both D1 and D2 that when both of them acting in concert to commit a burglary offence, it is an aggravating factors as stated in the case of HKSAR v Cheng Wai Kai [2008] HKCU 932. 

45.  I also noted that in HKSAR v Cheung To Ming[2006] that a low starting point of sentence was adopted which was 18 months for eating 2 packets of noodles for a burglary charge. 

46.  When I pass sentence on both defendants, I take into account of all mitigating factors advanced on their behalves, I also have read all the letters placed before me, the total value of the stolen properties, I consider that appropriate starting point is 24 months, adjusted upward for another 3 months for the aggravating factor, reduced to 18 months after 1/3 discount.  I further reduced 1 month for full restitution for both defendants, it comes down to 17 months.

47.  I also reduce an additional one-month discount for D1’s volunteering work in the past.

48.  Order: -

D1 to serve a sentence of 16 months.

D2 to serve a sentence of 17 months.