DCCC467/2020 HKSAR v. CHAN LAI YEE, KIKO - LawHero
DCCC467/2020
區域法院（刑事）HH Judge Dufton26/8/2021[2021] HKDC 1090
DCCC467/2020
A A
DCCC 467/2020
B [2021] HKDC 1090 B
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 467 OF 2020 D
____________
E HKSAR E
v
F F
CHAN LAI YEE, KIKO
G
____________ G
Before: HH Judge Dufton
H H
Date: 27 August 2021
I
Present: Mr Y.C. Lee, counsel on fiat, for HKSAR I
Mr Dick Lee instructed by Yip, Tse & Tang,
assigned by the Director of Legal Aid for the defendant.
J J
Offences: (1) Burglary (入屋犯法罪)
(2) Theft (盜竊罪)
K K
REASONS FOR SENTENCE
L L
1. The defendant pleads guilty to one charge of burglary,
M M
1
contrary to section 11 of the Theft Ordinance and one charge of theft,
N contrary to section 9 of the Theft Ordinance. N
O O
2. Full particulars of the offences are set out in the summary of
P facts admitted by the defendant on 6 August 2021. Sentence was adjourned P
for the preparation of a probation report.
Q Q
3. In summary in April 2020 the defendant was employed as a
R R
part-time worker by Royce Laundry & Dry Cleaning Centre in Quarry Bay.
S S
The laundry was owned by Ms Mak and her husband. Ms Lau and Ms
T
Tam were also employed as part-time staff. T
1
Cap 210.
U U
V V
-2-
A A
4. The opening hours of the laundry was between 8 a.m. and 8
B B
p.m. The laundry was secured by a locked glass door for which the
C defendant, Ms Lau and Ms Tam were each given a key. CCTV was C
installed inside the laundry.
D D
E 5. On 23 April 2020 before leaving work Ms Lau counted the E
daily profit. The daily profit was $2,930 which was placed in the red
F F
cashier box pending collection by Ms Mak.
G G
6. The defendant was on duty the next day between 8 a.m. and 2
H p.m. and Ms Tam between 3 p.m. and 8 p.m. When Ms Tam left work she H
placed the daily profit in the sum of $3,274 inside the cashier drawer and
I I
locked the glass door.
J J
7. When Ms Lau returned to work at 8 a.m. on 25 April 2020 she
K K
discovered that there was only $24 left in the cashier drawer. After
L confirming with Ms Tam how much she had put in the cashier drawer Ms L
Lau informed Ms Mak.
M M
N
8. Ms Mak attended the laundry and discovered that $700 was N
missing from the daily float of $1,400 cash which was kept in a blue tray
O O
on top of the cashier drawer and that the daily profit of $2,930 Ms Lau had
P placed in the red cashier box on 23 April 2020 was also missing. P
Q 9. Ms Mak viewed the CCTV which showed a person entering Q
the laundry at about 9 p.m. on 24 April 2020, opening the cashier drawer
R R
and taking some money away. The person was then seen taking money
S from the area where the blue tray and the red cashier box were located. S
T T
U U
V V
-3-
A A
10. The case was reported to the police. There being no sign of
B B
forced entry and the person seen on the CCTV appeared to be familiar with
C the internal setting of the laundry, the police suspected an ‘inside job”. C
D D
11. When the defendant reported for duty on 28 April 2020 she
E was arrested. E
F 12. In a search of the defendant’s residence the police recovered F
the key to the glass door and the clothes the person seen on the CCTV was
G G
wearing.
H H
13. In a subsequent record of interview and a video recorded
I I
interview the defendant admitted, inter alia, stealing about $2,900 from the
J cashier box before going off duty on 24 April 2020 and after going off duty J
returning to the laundry at about 9 p.m., opening the glass door and stealing
K K
about $3,000.
L L
Mitigation
M M
14. In passing sentence, I have carefully considered the oral and
N N
written submissions of Mr Lee, including that the defendant who is 32,
O married with two sons aged 6 and 12, has been diagnosed with borderline O
intelligence2.
P P
Q 15. I have read the defendant’s mitigation letter in which she Q
explains that she stole her employer’s money because she had lost money
R R
investing in the stock market and was unable to repay her debts3.
S S
T T
2
See §41-6 of the written mitigation.
3
Also see §§5-7 of the defence submissions in mitigation and §6 of the probation report.
U U
V V
-4-
A A
16. In November 2020 the defendant was made bankrupt due to
B B
her inability to repay the debts4. Mr Lee has submitted today a copy of the
C bankruptcy petition which sets out the debts owed by the defendant. C
D D
17. In her letter the defendant also refers to suffering from
E auditory hallucinations and that prior to stealing her employer’s money she E
heard a voice telling her to get money from her company to repay the debt5.
F F
In oral submissions today Mr Lee says that prior to each offence the
G defendant also received many phone calls urging her to repay her debts. G
H 18. Mr Lee says the defendant, knowing what she did was illegal, H
acted out of momentary impulse without fully appreciating the seriousness
I I
6
and legal consequences of her acts .
J J
19. I have also read the letters written by the defendant’s husband,
K K
elder son and former employer.
L L
20. I take into account the defendant has no previous convictions
M M
and that the defendant had worked for the laundry for three years before
N
committing the offences7. N
O Guidelines O
P P
Charge 1 - burglary
Q Q
21. The correct starting point for a single burglary of non-
R domestic premises committed by a first offender of full age where there are R
S 4 S
See §4 (ix) of the defence submissions in mitigation and §8 of the probation report.
5
Also see §§4 & 6 of the probation report.
T T
6
See §8 of the defence submissions in mitigation.
7
See §4 (viii) of the defence submissions in mitigation.
U U
V V
-5-
A A
no aggravating or mitigating features is 2 years and 6 months’
B B
imprisonment.
C C
Charge 2 - theft
D D
22. By stealing the property of her employer the defendant
E E
breached the trust placed in her by Ms Mak. In passing sentence, I have
F considered the principles laid down in R v Clark8 as applied in HKSAR v F
Cheung Mee Kiu9 as adjusted in HKSAR v Ng Kwok Wing10.
G G
H 23. The guidelines state the proper starting point after trial where H
the amount stolen is less than $250,000 is less than 2 years’ imprisonment.
I I
24. Mr Lee submits the offences were not pre-meditated and can
J J
be regarded as a one-off incident committed under an abnormal mental
K condition11. Mr Lee submits there are exceptional circumstances whereby K
the court can depart from the normal starting points and impose a non-
L L
12
custodial sentence .
M M
25. In support of his submissions Mr Lee refers the court to a
N N
number of sentencing cases from the District Court 13. I have considered all
O the cases submitted by Mr Lee. O
P P
8
Q (1998) 2 Cr App R 137. Q
9
[2006] 4 HKLRD 776.
R 10
[2008] 4 HKLRD 1017. R
11
See §§9 & 13 of the defence submissions in mitigation.
S 12 S
See §25 of the defence submissions in mitigation.
13
HKSAR v Gurung Vinod Kumar [2019] HKDC 689; HKSAR v Woo Kin Yan DCCC 562/2010;
T HKSAR v Law Tsin Hung DCCC 1252/2010 and HKSAR v Ko Chun Ho DCCC 593/2010. Mr Lee T
also submitted HKSAR v Chiu Peng Richard [2002] 1 HKLRD 185 and HKSAR v Chi Wing Kin
HCMA 683/2000.
U U
V V
-6-
A A
Individual justice
B B
C
26. In determining whether there are exceptional circumstances I C
have carefully considered the need for individual justice, as articulated in
D D
the cases of HKSAR v Leung Pui Shan14 and HKSAR v Yeung Kwun Kuen15,
E cases concerning obtaining money by deception and theft. E
F 27. In Leung Pui Shan the appellant, aged 19, had not set out to F
deceive purely for personal gain, the offences being committed in the midst
G G
of emotional confusion. In Yeung Kwun Kuen, the appellant, aged 21, who
H had been suffering from a long-term mental health problem committed the H
offences close upon the heels of a traumatic event, namely the death of his
I I
grandmother.
J J
28. Exceptional circumstances were also found in HKSAR v Lam
K K
Ka Sin, a money laundering case, where the Court of Appeal adopted the
L individualised approach to sentence16. L
M M
Mental illness
N N
29. I have read the psychiatric reports prepared by Dr Wan Chun
O Wah and Dr Henry W.M. Kwok. O
P P
30. Dr Kwok is of the opinion that the defendant was not acting
Q directly under the influence of psychotic symptoms and that the offences Q
R R
S S
14
[2008] HKC 241.
T T
15
CACC 475/2012 & 476/2012.
16
[2021] 2 HKLRD 32.
U U
V V
-7-
A A
were likely to be an attempt by the defendant to solve her debts when she
B B
was at a loss in a crisis 17.
C C
31. I take into account that after her arrest the defendant was
D D
diagnosed to be suffering from First Episode Psychosis consisting of
E auditory hallucinations and paranoid delusion. E
F 32. From the information placed before the court it would appear F
the family were unaware of the defendant’s mental and financial problems
G G
which only came to light with her arrest. The family have pulled together
H to ensure the defendant does not reoffend. The defendant continues to H
receive psychiatric treatment and has received counselling to treat what Mr
I I
Lee describes as the defendant’s “gambling” problem (investing in the
J stock market) 18. J
K K
33. Dr Kwok is of the opinion that with continued supervision and
L support, the chance of recidivism should be low. L
M M
Sentence
N N
34. After careful consideration and taking into account all the
O circumstances of the offences including the relatively small amount of O
money stolen, $6,880 for which full restitution has been made; the
P P
defendant’s personal circumstances, including her mental health and how
Q the family has addressed the defendant’s illness and “gambling” problem to Q
ensure the defendant does not reoffend and that the defendant has a clear
R R
S S
T
17
See §§65 & 66 of Dr Kwok’s report. T
18
See §§7, 9, 17, 18, 19, 22 & 36 of the defence submissions in mitigation and §§4, 6 & 8 of the
probation report.
U U
V V
-8-
A A
record, I am satisfied that there are exceptional circumstances whereby I
B B
can depart from the guidelines.
C C
35. In view of the defendant’s mental health, clear record, strong
D D
family support and the need for counselling, the probation officer is of the
E opinion probation supervision would be helpful and beneficial to the E
defendant’s rehabilitation. Probation is recommended with special
F F
conditions relating to psychiatric treatment.
G G
36. Having explained a probation order to the defendant and the
H defendant having consented to the making of a probation order, the H
defendant is convicted and sentenced to 18 months’ probation with the
I I
19
special conditions set out in the report concurrent on each charge .
J J
37. The defendant is ordered to pay Ms Mak Yee Wah
K K
compensation of $3,950 on charge 1 and $2,930 on charge 2. The sum of
L $200 is to be paid from the money seized from the defendant on arrest and L
the balance of $6,680 from the monies paid into court by the defendant’s
M M
husband.
N N
O O
(D. J. DUFTON)
District Judge
P P
Q Q
R R
S S
T T
19
See section 3(4) of the Probation of Offenders Ordinance, Cap 298.
U U
V V
A A
DCCC 467/2020
B [2021] HKDC 1090 B
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 467 OF 2020 D
____________
E HKSAR E
v
F F
CHAN LAI YEE, KIKO
G
____________ G
Before: HH Judge Dufton
H H
Date: 27 August 2021
I
Present: Mr Y.C. Lee, counsel on fiat, for HKSAR I
Mr Dick Lee instructed by Yip, Tse & Tang,
assigned by the Director of Legal Aid for the defendant.
J J
Offences: (1) Burglary (入屋犯法罪)
(2) Theft (盜竊罪)
K K
REASONS FOR SENTENCE
L L
1. The defendant pleads guilty to one charge of burglary,
M M
1
contrary to section 11 of the Theft Ordinance and one charge of theft,
N contrary to section 9 of the Theft Ordinance. N
O O
2. Full particulars of the offences are set out in the summary of
P facts admitted by the defendant on 6 August 2021. Sentence was adjourned P
for the preparation of a probation report.
Q Q
3. In summary in April 2020 the defendant was employed as a
R R
part-time worker by Royce Laundry & Dry Cleaning Centre in Quarry Bay.
S S
The laundry was owned by Ms Mak and her husband. Ms Lau and Ms
T
Tam were also employed as part-time staff. T
1
Cap 210.
U U
V V
-2-
A A
4. The opening hours of the laundry was between 8 a.m. and 8
B B
p.m. The laundry was secured by a locked glass door for which the
C defendant, Ms Lau and Ms Tam were each given a key. CCTV was C
installed inside the laundry.
D D
E 5. On 23 April 2020 before leaving work Ms Lau counted the E
daily profit. The daily profit was $2,930 which was placed in the red
F F
cashier box pending collection by Ms Mak.
G G
6. The defendant was on duty the next day between 8 a.m. and 2
H p.m. and Ms Tam between 3 p.m. and 8 p.m. When Ms Tam left work she H
placed the daily profit in the sum of $3,274 inside the cashier drawer and
I I
locked the glass door.
J J
7. When Ms Lau returned to work at 8 a.m. on 25 April 2020 she
K K
discovered that there was only $24 left in the cashier drawer. After
L confirming with Ms Tam how much she had put in the cashier drawer Ms L
Lau informed Ms Mak.
M M
N
8. Ms Mak attended the laundry and discovered that $700 was N
missing from the daily float of $1,400 cash which was kept in a blue tray
O O
on top of the cashier drawer and that the daily profit of $2,930 Ms Lau had
P placed in the red cashier box on 23 April 2020 was also missing. P
Q 9. Ms Mak viewed the CCTV which showed a person entering Q
the laundry at about 9 p.m. on 24 April 2020, opening the cashier drawer
R R
and taking some money away. The person was then seen taking money
S from the area where the blue tray and the red cashier box were located. S
T T
U U
V V
-3-
A A
10. The case was reported to the police. There being no sign of
B B
forced entry and the person seen on the CCTV appeared to be familiar with
C the internal setting of the laundry, the police suspected an ‘inside job”. C
D D
11. When the defendant reported for duty on 28 April 2020 she
E was arrested. E
F 12. In a search of the defendant’s residence the police recovered F
the key to the glass door and the clothes the person seen on the CCTV was
G G
wearing.
H H
13. In a subsequent record of interview and a video recorded
I I
interview the defendant admitted, inter alia, stealing about $2,900 from the
J cashier box before going off duty on 24 April 2020 and after going off duty J
returning to the laundry at about 9 p.m., opening the glass door and stealing
K K
about $3,000.
L L
Mitigation
M M
14. In passing sentence, I have carefully considered the oral and
N N
written submissions of Mr Lee, including that the defendant who is 32,
O married with two sons aged 6 and 12, has been diagnosed with borderline O
intelligence2.
P P
Q 15. I have read the defendant’s mitigation letter in which she Q
explains that she stole her employer’s money because she had lost money
R R
investing in the stock market and was unable to repay her debts3.
S S
T T
2
See §41-6 of the written mitigation.
3
Also see §§5-7 of the defence submissions in mitigation and §6 of the probation report.
U U
V V
-4-
A A
16. In November 2020 the defendant was made bankrupt due to
B B
her inability to repay the debts4. Mr Lee has submitted today a copy of the
C bankruptcy petition which sets out the debts owed by the defendant. C
D D
17. In her letter the defendant also refers to suffering from
E auditory hallucinations and that prior to stealing her employer’s money she E
heard a voice telling her to get money from her company to repay the debt5.
F F
In oral submissions today Mr Lee says that prior to each offence the
G defendant also received many phone calls urging her to repay her debts. G
H 18. Mr Lee says the defendant, knowing what she did was illegal, H
acted out of momentary impulse without fully appreciating the seriousness
I I
6
and legal consequences of her acts .
J J
19. I have also read the letters written by the defendant’s husband,
K K
elder son and former employer.
L L
20. I take into account the defendant has no previous convictions
M M
and that the defendant had worked for the laundry for three years before
N
committing the offences7. N
O Guidelines O
P P
Charge 1 - burglary
Q Q
21. The correct starting point for a single burglary of non-
R domestic premises committed by a first offender of full age where there are R
S 4 S
See §4 (ix) of the defence submissions in mitigation and §8 of the probation report.
5
Also see §§4 & 6 of the probation report.
T T
6
See §8 of the defence submissions in mitigation.
7
See §4 (viii) of the defence submissions in mitigation.
U U
V V
-5-
A A
no aggravating or mitigating features is 2 years and 6 months’
B B
imprisonment.
C C
Charge 2 - theft
D D
22. By stealing the property of her employer the defendant
E E
breached the trust placed in her by Ms Mak. In passing sentence, I have
F considered the principles laid down in R v Clark8 as applied in HKSAR v F
Cheung Mee Kiu9 as adjusted in HKSAR v Ng Kwok Wing10.
G G
H 23. The guidelines state the proper starting point after trial where H
the amount stolen is less than $250,000 is less than 2 years’ imprisonment.
I I
24. Mr Lee submits the offences were not pre-meditated and can
J J
be regarded as a one-off incident committed under an abnormal mental
K condition11. Mr Lee submits there are exceptional circumstances whereby K
the court can depart from the normal starting points and impose a non-
L L
12
custodial sentence .
M M
25. In support of his submissions Mr Lee refers the court to a
N N
number of sentencing cases from the District Court 13. I have considered all
O the cases submitted by Mr Lee. O
P P
8
Q (1998) 2 Cr App R 137. Q
9
[2006] 4 HKLRD 776.
R 10
[2008] 4 HKLRD 1017. R
11
See §§9 & 13 of the defence submissions in mitigation.
S 12 S
See §25 of the defence submissions in mitigation.
13
HKSAR v Gurung Vinod Kumar [2019] HKDC 689; HKSAR v Woo Kin Yan DCCC 562/2010;
T HKSAR v Law Tsin Hung DCCC 1252/2010 and HKSAR v Ko Chun Ho DCCC 593/2010. Mr Lee T
also submitted HKSAR v Chiu Peng Richard [2002] 1 HKLRD 185 and HKSAR v Chi Wing Kin
HCMA 683/2000.
U U
V V
-6-
A A
Individual justice
B B
C
26. In determining whether there are exceptional circumstances I C
have carefully considered the need for individual justice, as articulated in
D D
the cases of HKSAR v Leung Pui Shan14 and HKSAR v Yeung Kwun Kuen15,
E cases concerning obtaining money by deception and theft. E
F 27. In Leung Pui Shan the appellant, aged 19, had not set out to F
deceive purely for personal gain, the offences being committed in the midst
G G
of emotional confusion. In Yeung Kwun Kuen, the appellant, aged 21, who
H had been suffering from a long-term mental health problem committed the H
offences close upon the heels of a traumatic event, namely the death of his
I I
grandmother.
J J
28. Exceptional circumstances were also found in HKSAR v Lam
K K
Ka Sin, a money laundering case, where the Court of Appeal adopted the
L individualised approach to sentence16. L
M M
Mental illness
N N
29. I have read the psychiatric reports prepared by Dr Wan Chun
O Wah and Dr Henry W.M. Kwok. O
P P
30. Dr Kwok is of the opinion that the defendant was not acting
Q directly under the influence of psychotic symptoms and that the offences Q
R R
S S
14
[2008] HKC 241.
T T
15
CACC 475/2012 & 476/2012.
16
[2021] 2 HKLRD 32.
U U
V V
-7-
A A
were likely to be an attempt by the defendant to solve her debts when she
B B
was at a loss in a crisis 17.
C C
31. I take into account that after her arrest the defendant was
D D
diagnosed to be suffering from First Episode Psychosis consisting of
E auditory hallucinations and paranoid delusion. E
F 32. From the information placed before the court it would appear F
the family were unaware of the defendant’s mental and financial problems
G G
which only came to light with her arrest. The family have pulled together
H to ensure the defendant does not reoffend. The defendant continues to H
receive psychiatric treatment and has received counselling to treat what Mr
I I
Lee describes as the defendant’s “gambling” problem (investing in the
J stock market) 18. J
K K
33. Dr Kwok is of the opinion that with continued supervision and
L support, the chance of recidivism should be low. L
M M
Sentence
N N
34. After careful consideration and taking into account all the
O circumstances of the offences including the relatively small amount of O
money stolen, $6,880 for which full restitution has been made; the
P P
defendant’s personal circumstances, including her mental health and how
Q the family has addressed the defendant’s illness and “gambling” problem to Q
ensure the defendant does not reoffend and that the defendant has a clear
R R
S S
T
17
See §§65 & 66 of Dr Kwok’s report. T
18
See §§7, 9, 17, 18, 19, 22 & 36 of the defence submissions in mitigation and §§4, 6 & 8 of the
probation report.
U U
V V
-8-
A A
record, I am satisfied that there are exceptional circumstances whereby I
B B
can depart from the guidelines.
C C
35. In view of the defendant’s mental health, clear record, strong
D D
family support and the need for counselling, the probation officer is of the
E opinion probation supervision would be helpful and beneficial to the E
defendant’s rehabilitation. Probation is recommended with special
F F
conditions relating to psychiatric treatment.
G G
36. Having explained a probation order to the defendant and the
H defendant having consented to the making of a probation order, the H
defendant is convicted and sentenced to 18 months’ probation with the
I I
19
special conditions set out in the report concurrent on each charge .
J J
37. The defendant is ordered to pay Ms Mak Yee Wah
K K
compensation of $3,950 on charge 1 and $2,930 on charge 2. The sum of
L $200 is to be paid from the money seized from the defendant on arrest and L
the balance of $6,680 from the monies paid into court by the defendant’s
M M
husband.
N N
O O
(D. J. DUFTON)
District Judge
P P
Q Q
R R
S S
T T
19
See section 3(4) of the Probation of Offenders Ordinance, Cap 298.
U U
V V