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DCCC 929/2019
[2020] HKDC 943
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 929 OF 2019
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| Present: |
Mr Yeung Shak Nung, counsel on fiat, for HKSAR |
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Mr Jasper Kwan instructed by W.K. To & Co, assigned by the Director of Legal Aid, for the defendant |
| Offences: |
Attempted Burglary (企圖入屋犯法罪) |
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REASONS FOR SENTENCE
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1. The defendant, a visitor from the Mainland, pleads guilty to two charges of attempted burglary of domestic premises in Happy Valley and Shek O in September 2019, contrary to section 11 of the Theft Ordinance[1] and section 159G of the Crimes Ordinance[2].
2. Full particulars of the offences are set out in the amended summary of facts admitted by the defendant[3].
Charge 1
3. In summary the defendant came to Hong Kong on 14 September last year. At about 11:15 p.m. on 16 September 2019 the security guards of the house at No. 2 Goldsmith Road in Happy Valley saw the defendant carrying a backpack in the outdoor area of the house.
4. The house is surrounded by an outer wall. Photographs of the house have been submitted to court.
5. One of the security guards approached the defendant and asked the defendant how he entered the outdoor area. The defendant replied that he had climbed into the area looking for a “boss” to help.
6. A report was made to the police, who arrived and arrested the defendant. Under caution the defendant claimed he had gone there to obtain money as he was running out of money.
7. CCTV footage showed the defendant climbing into the outdoor area shortly after which he was intercepted by the security guards. I have had the opportunity of viewing the CCTV footage.
8. In a video recorded interview, the defendant claimed, inter alia, that he went to the house with a view to borrowing money because the owner was rich and benevolent.
9. The defendant was released and returned to the Mainland on 18 September 2019[4].
Charge 2
10. In summary the defendant returned to Hong Kong on 20 September 2019. At about 6:19 a.m. on 21 September the domestic helper of the house at No. 12 Big Wave Bay Road in Shek O saw the defendant, who was carrying a backpack, sitting on the stairs leading to the main door of the house.
11. The house is secured by a main gate. Photographs of the house have been submitted to court.
12. The security manager was called and asked the defendant how he had entered. The defendant replied that he had climbed in from the main gate and said he went there to find a “boss’ for a job.
13. A report was made to the police, who arrived and arrested the defendant. Under caution the defendant claimed he was there to “find money”.
14. CCTV footage showed the defendant walking on the private road of the house and sitting down on the staircase in front of the house. I have also had the opportunity of viewing the CCTV footage.
Mitigation
15. In passing sentence, I have carefully considered the oral submissions of Mr Kwan, including that the defendant, who has a clear record, suffers from schizophrenia[5].
Starting point
16. Mr Kwan informs the court that the defendant came to Hong Kong to steal and withdraws the exculpatory explanations that he was looking for a job and intended to borrow money. Mr Kwan asks the court to take into account that there was no entry into either home.
17. The correct starting point for a single burglary of residential premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment. Arguably there are a number of aggravating features, including that the defendant came to Hong Kong to commit burglary targeting premises where Hong Kong tycoons live, which call for an enhanced starting point.
18. On the other hand, the circumstances of both these burglaries can be described as unusual and that the defendant is not a typical burglar. For example, the defendant sat on the stairs outside the second home and was not equipped to commit burglary as is shown by the contents of his bag, which included shampoo, toothpaste and the video recorded interview of his first arrest[6].
19. The psychiatric report placed before the court reveals that the defendant has received psychiatric treatment in China for around three to four years, the defendant reporting hearing non-existing voices with abnormal referential and persecutory idea[7]. With medication the defendant’s condition improved, however, prior to coming to Hong Kong the defendant had not been taking his medication for half a year. On admission to Siu Lam Psychiatric Centre in November last year the defendant was diagnosed to have schizophrenia with symptoms of disorganised speech with derailment and loosening of association.
20. Whether psychiatric illness is to be taken into account depends on whether the defendant’s culpability is reduced by reason of his illness. In HKSAR v Chiu Peng, Richard the Court of Appeal accepted that a court may properly allow a discount in sentence where a defendant is suffering from mental illness which played a part in the commission of the offence. The court said the justification for a discount in sentence by reason of mental illness was as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind[8].
21. Having carefully considered the reports and the circumstances of both burglaries, I am satisfied that the defendant’s mental health may well have played a part in the commission of the offence whereby he did not realise the seriousness of what he was doing whereby his culpability was lessened. In the circumstances I am satisfied a lower starting point is appropriate for each burglary.
22. Taking into account both charges are attempted burglary and neither home was entered, I am satisfied a starting point of 21 months’ imprisonment is appropriate for each burglary. Giving the defendant full credit for his pleas of guilty reduce the sentence on each charge to 14 months’ imprisonment.
Totality
23. Where offences are committed in different premises against different victims on different dates, consecutive sentences should be imposed, subject to the totality principle. Taking into account the seriousness of the offences; both burglaries are attempts with no property stolen and no property damaged and nobody alarmed and the defendant suffers from schizophrenia, I am satisfied a total sentence of 20 months’ imprisonment properly reflects the defendant’s overall criminal culpability on the two charges[9].
24. The defendant is convicted and sentenced as follows:
Charge 1 – 14 months’ imprisonment; and
Charge 2 – 14 months’ imprisonment with 6 months consecutive and 8 months concurrent to charge 1.
The total sentence to be served by the defendant is 20 months’ imprisonment.
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(D. J. DUFTON) |
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District Judge |
[1] Cap 210.
[2] Cap 200.
[3] The defendant first appeared for plea and sentence on 5 October 2020. At the hearing I questioned whether this was properly a plea of guilty. After taking further instructions Mr Cheung withdrew acting on behalf of the defendant, citing professional embarrassment. The case was adjourned for the Department of Legal Aid to instruct new counsel and solicitors. Mr Yeung informed the court today that at the request of the defence paragraph 11 of the summary of facts was amended to remove part of the exculpatory explanations in the video recorded interview.
[4] Mr Yeung informed the court that the police were of the view that there was insufficient evidence and therefore released the defendant.
[5] Mr Kwan adopted the written submissions of Mr Cheung. See §§4 & 6 of the written mitigation.
[6] See photograph album 4.
[7] Report of Dr Wong Hei Tung resident psychiatrist at Kwai Chung Hospital dated 6 April 2020.
[8] [2002] 1 HKC 401.
[9] See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690.
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