HKSAR v. LAM YIK TUNG

DCCC 377/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 377 OF 2014

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Burglary". She burgled a beauty salon situated at a commercial building in Central.

Summary of Facts

2.  "Beauty Forever Salon Centre" is situated at 4^th Floor, On Hing Building, No.1 On Hing Terrace, Central ("the Shop").

3.  About 7:30 am on 20 February 2014, PW1 (Madam CHOW), a beautician, returned to the Shop for an early appointment.  She was in a room giving beauty treatment to a client.  At that time, she did not lock the front door of the Shop or the door to the pantry.

4.  About 8:50 am, the defendant, a complete stranger, barged into the treatment room.  She asked PW1 if she could use the washroom and about the charges of the Shop.  PW1 showed the defendant to the washroom, brought her back to the reception area and invited her to wait for a while.  PW1 then locked the door to the pantry and went back to work.

5.  Shortly after 9:00 am, PW2 (Madam FONG), manager of the Shop, returned.  The defendant approached PW2 to enquire about the business hours.  PW2 asked her to leave her phone number.  After the defendant had left the Shop, PW2 went to the pantry and discovered her locker having been ransacked.  PW1 was alerted and she also discovered missing from her wallet $350 cash and 9 x $50 ice-cream cash coupons.  PW2 immediately informed the building management office.

6.  The defendant was intercepted by PW3 (Madam CHEUNG), a security guard, on the Ground Floor.  Whilst waiting for the Police to arrive, the defendant asked to use the washroom.  PW3 escorted her there and she went into a cubicle.  PW3 heard some rattling noise of plastic bags and of the toilet tank.

7.  The Police arrived and arrested the defendant in the washroom.  At the scene, the defendant said under caution "The food and the beauty products inside the 'Wing Wah' plastic bag were given by my friend(s).  The $380 are mine.  I did not steal anything."

8.  Both the defendant and the washroom were searched.  The properties particularized in the Charge were found inside the red "Wing Wah" plastic bag and the blue nylon bag carried by the defendant; the left and right sleeves of the defendant's jacket; the toilet tank; and on the floor of the cubicle used by the defendant.  PW1 and PW2 identified those properties as being stolen from the Shop.

Mitigation & Sentence

9. The defendant is now 19 and has a clear record. Defence counsel Ms. FUNG informed me that the defendant's parents separated when she was 12. She has been living with her mother since. The defendant's mother had to work long hours; the defendant was therefore by herself most of the time. Owing to her physical appearance (obesity and albino), the defendant did not have many friends at school.

10. Ms. FUNG submitted that about a week before the offence, the defendant broke up with her boyfriend and quitted her job. The night before the offence, the defendant was drinking at a club in Lan Kwai Fong, which is also situated at the same building as the Shop. In the morning, she returned to the club to retrieve her iPhone, iPad and other personal belongings. As it was too early, the club was closed. The defendant wanted to use the washroom; so she pressed any button in the lift. She ended up in the Shop. When she walked by the staff area (i.e. the pantry), she discovered a number of lockers not locked. As a result, she took away the items particularized in the Charge.

11. Ms. FUNG further submitted that the defendant is remorseful. Her parents support her fully. Ms. FUNG stressed that the offence was not pre-meditated; it was an opportunistic crime; no one was injured or alarmed; and all stolen properties were recovered. A bundle of mitigation letters was placed before me; their contents are duly noted. A bundle of certificates in relation to the defendant's performance in voluntary work was also placed before me; I accept that the defendant was a dedicated volunteer.

12. Owing to the defendant's age, I called for a series of pre-sentencing reports. Psychiatric Reports revealed that the defendant suffers from Bipolar Affective Disorder; outpatient follow-up treatment is recommended. Rehabilitation Centre/Training Centre Suitability Report indicated that she is mentally and physically fit for detention in a Rehabilitation Centre or Training Centre, but more suitable for a Rehabilitation Centre.

13. I am aware of the sentencing tariff for non-domestic burglaries. I have borne in mind the length of the prison term the defendant is likely to receive had she been over 21. On the other hand, I cannot overlook her age and need for rehabilitation. I have reminded myself that correctional institutions such as Rehabilitation Centres exist for the benefit of young offenders. These institutions play an important role in our penal system.

14. The officer who wrote the report considers Rehabilitation Centre more suitable for the defendant. I would not hide the fact that the defendant's age and personal circumstances played a determining role which spared her the punishment of immediate imprisonment. After careful consideration, I, with some reluctance, have decided to make a Rehabilitation Centre Order, which will be the sentence for the defendant. I believe a Rehabilitation Centre Order will benefit her most in terms of disciplinary training, reformation and punishment.