HKSAR v. Lau Hak Kan

DCCC312/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 312 OF 2009

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Reasons for Sentence

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1.The defendant has been convicted on his plea of one charge of burglary committed on 9 February this year.

2.He entered the home in question in the Ma On Shan area by prising a window open with a couple of screwdrivers to enter the house, after which he apparently prised a further window of the bedroom inside.  He stole all the items as particularised, which consisted mainly of jewellery, also three mobile phones and some cash amounts in different currencies.

3.He was seen later that day acting suspiciously by some alert police officers; he was intercepted by them and searched, and a pawn receipt was found in the jacket he was wearing, as well as three mobile phones. 

4.The defendant is 34 years old.  He has a very poor record indeed: 17 previous convictions including five for burglary. 

5.I should say immediately that the defendant suffers from a high degree of hearing and speaking disability although he does not claim to be completely deaf and mute.  To emphasize that point, the proceedings in court have all been interpreted by a sign language interpreter today.  His disabilities apparently developed after he suffered a very high fever at the age of 7. 

6.Mr Chan has drawn my attention to a decision of the Court of Appeal in Criminal Appeal No. 106 of 2001, a judgment in Chinese, in which it is accepted that the Court of Appeal reduced a term of imprisonment which had been imposed upon the defendant by 6 months on account of the fact that the appellant was deaf and mute.

7.I note that the defendant is a drug addict, I accept that for sentencing purposes.  Apparently, he has been addicted to dangerous drugs for the past 14 years.  He is currently still serving a sentence of detention in a drug addiction treatment centre, which was imposed upon him on 10 March this year for an offence of possession of dangerous drugs.

8.The defendant has submitted through Mr Chan who appears for him that he is finding that the treatment and the care that he has received in the DATC have been helpful to him and he would like to continue the treatment programme in the DATC, and he asks for a fresh order of detention in the DATC to be imposed upon him today.

9.While I certainly do have sympathy with the defendant that he suffers from a high degree of hearing and speaking disability, at the same time it seems to me that it would be wrong for the courts to continue to indulge him on account of those disabilities by always passing reduced sentences on him on account of the disability.  The danger is that that approach may well only in a sense encourage the defendant to believe that he can continue to commit crimes because he will always be treated more leniently.

10.I would like to make clear to the defendant that his disabilities do not relieve him of the duty to accept responsibility for himself and to live as a law-abiding member of the community.  His disabilities certainly do not prevent him from doing so. 

11.The well-established starting point for burglary of domestic premises is 3 years’ imprisonment after trial.  I do not consider that a sentence of detention in a drug addiction treatment centre would be an appropriate sentence in the present case.  It would not adequately reflect the seriousness of the offence, especially given the fact that, as I say, this is his sixth such offence of burglary or attempted burglary.

12.I also note that the defendant has been sentenced to a drug addiction treatment centre on three previous occasions in 1994, 1998 and 2001, so he has been given a fair chance of reforming himself and rehabilitating himself by means of the DATC programme, and he has not sufficiently seized that chance.

13.I can see no reason, and in particular not by reason of his very unfortunate disabilities, to depart from the guidelines which have been suggested by the Court of Appeal for sentencing for burglary of domestic premises, and I do adopt a starting point of 3 years’ imprisonment after trial.  If it were not for the defendant’s disabilities, I consider that it would have been appropriate to adopt an enhanced starting point in excess of 3 years’ imprisonment in view of his record of five similar previous convictions.

14.In return for his co-operation and plea of guilty, he is entitled to the normal one-third discount which discounts the starting point to 2 years’ imprisonment.  It has been submitted that imprisonment will bear more heavily upon the defendant because of his disabilities, that imprisonment will be even more of a hardship for him than it would be for a person without these disabilities, and indeed that appears to have been the reason why the Court of Appeal reduced the sentence in Criminal Appeal No. 106 of 2001.

15.I have been given no information as to how the Correctional Services authorities approach someone with the sort of disabilities that the defendant has while he is in prison.  It does seem to me that the mere fact of suffering those disabilities imposes a distinctive element of hardship upon the defendant which normal people with normal hearing and speaking abilities do not have to suffer.  That would apply whether they are inside or outside prison.

16.Nevertheless, I do accept that his disabilities would make a prison sentence that much harder for him and it would bear more heavily upon him than if he did not suffer these disabilities.  However, bearing in mind his record of five previous similar offences; the fact that he committed the present offence very shortly after he was released from prison, which sentence was imposed for a previous burglary offence, and that he committed this offence while he was on court bail, I do not consider that it would be appropriate to discount the sentence any further, albeit that I accept that his disabilities make the sentence of imprisonment that much more difficult for him than would otherwise would be the case.  So in all the circumstances, the sentence I impose on the defendant is 2 years’ imprisonment.