HKSAR v. Law Tsin Hung

DCCC 1252/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1252 OF 2010

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REASONS FOR SENTENCE

1.The Defendant has been convicted on his own plea on one count of burglary, contrary to Section 11(1)(a) and(4) of the Theft Ordinance, Cap. 210.

2.Section 11(1)(a) of the Theft Ordinance, Cap. 210 provides that a person commits burglary if he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2). The offence here is that set out in subsection (2)(c) – doing unlawful damage to the building or anything therein.

3.Facts admitted by the Defendant disclose that he is the younger brother of Law Nim-ho. He and Ms. Law and her family have a close relationship. In June, 2010, their relationship turned sour when there was a disagreement between the Defendant and Ms. Law's son over some valuable kittens co-owned by the both of them.

4.At about 1930 hours on 24 September,2010, Ms. Law and her family left their home at Room 1406, Ching Nga Court, Cheung Fat Estate, Tsing Yi after securing it. When they returned at 0030 hours on 25 September, 2010, they found the metal gate unlocked and signs of ransacking in the house. A number of the electrical appliances including a laptop computer, 2 air-conditioners, a television, 2 gas heaters, a microwave oven, a stove, and a CCTV recording system were all damaged beyond repair by an unknown corrosive fluid. The tropical fish and shrimps kept in 2 fish tanks were all found to be poisoned to death. There was no signs of any forced entry, so it was revealed that the intruder used keys to gain access into the premises. Further police inquiries led to the identification of the Defendant, who was arrested for the offence on 29 September, 2010. He admitted the offence under caution. He disclosed that his cat, which was of a valuable breed, gave birth to 2 kittens. Ms. Law's son had physical custody of the 2 kittens but it was agreed that they would be returned to the Defendant for sale when they had grown enough and they would share the profit. However, instead of returning the kittens to the Defendant for sale, Ms. Law's son simply gave the Defendant cash HK$1,000. This caused the relationship between the Defendant and Ms. Law's family to turn sour. One of Ms. Law's other sons frequently visited the Defendant's home, and on one occasion in August, 2010, he left his keys there and the Defendant kept the keys without telling anyone. He used the keys on 24 September, 2010 to gain entry to Ms. Law's home using the keys. He used half a bottle of chemical drain cleaner he found inside the kitchen and poured them onto the electrical appliances and fish tanks, thereby damaging the appliances and killing the tropical fish and shrimps. He did so out of revenge. The total value of the damage was approximately HK$41,020.

5.It is evident that this is not the usual case of burglary of domestic premises.

6.After hearing counsel in mitigation, I adjourned the matter for a Probation Officer and Community Service Order Reports, Psychiatric & Psychologist's Reports, remanding the Defendant in custody. I did warn the Defendant that I kept all options of sentence including a custodial sentence open to myself, and that the usual sentence for offences of this nature was an immediate custodial one.

7.When the matter resumed before me, I had before me the reports that I had sought. After hearing further mitigation from Counsel, I adjourned the matter until today for sentence.

8.The Defendant has 4 previous convictions, his most recent being in 2007 when he was placed on probation for 12 months for an offence of theft, the type commonly referred to as 'shoplifting'. His first conviction was in 1989, when he was 21 years old, and then in 1990 and 1992. He stayed out of trouble between 1992 and 2007. One of his previous convictions in 1992 was for an offence of conspiracy to burgle, when he was given a suspended sentence.

9.As I have said, this is not the usual sort of burglary of domestic premises, but arose because of a family dispute.

10.The Defendant comes from a large family, being the youngest of 9 children. He is now aged 42 years. His eldest sibling is now aged 57 years. Ms. Law Nim-hot is his second eldest sister. All the siblings are married and live apart. The Defendant and his co-habitee used to live with the Defendant’s father, aged 76 years old. His mother has passed away. Since August, 2010, the father has been living with one of his daughters for better care. The Defendant runs a hawker stall that used to belong to his parents and earns about $8,000 a month. Counsel submitted that the Defendant acted on impulse to vent his frustration and anger at what his nephew had done – his sister and her family had already forgiven him. She has written a letter confirming this, saying that the Defendant had apologized to her and her family and they had forgiven the Defendant and did not wish to pursue the matter – they did not realize the serious consequences to the Defendant. Five other members of the Defendant’s family have also written letters, including his father, other siblings and his sister and brother-in-law. Their letters are all in the same vein – including that the Defendant was genuinely remorseful, he acted on impulse, the family had forgiven him and that this was a family matter that arose from a misunderstanding among family members. They all sought leniency and a non-custodial sentence on behalf of the Defendant. Clearly he comes from a loving and supportive family. Counsel also submitted that the Defendant suffered from depression and he had been receiving treatment for this since 2004.

11.The Background Report confirms much of what was submitted by Counsel, including that he suffered from depression since 2003, and had been receiving treatment at the East Kowloon Psychiatric Centre, requiring follow-up every three weeks. Since his convictions in 1992, he has maintained a stable work pattern and has been leading an industrious life running the hawker stall that used to belong to his parents. To further his career prospects, since March 2010 he has been working part-time, with no pay, as a real-estate trainee. In his free time, he would look after his cats – he loves animals, cats in particular. He would spend time with his family or watching television, and had no unwholesome habits. Community service was not recommended because he required regular psychiatric treatment and it was felt that additional unpaid community work on top of his busy daily work schedule would put additional pressure on him and could affect his mental health adversely, and because of his impulsiveness and in view of his mental illness, this could limit the type of community work he could be placed for.

12.The Psychiatric Report confirms that he has been known to the mental health services since 2004, and was diagnosed with mixed anxiety and depressive disorder. He attended the psychiatric outpatient clinic regularly and had good compliance with medication. In the past few months, he had been complaining of persistent sleep problems and hearing of voices, but his mood was overall stable and he could cope with his work.

13.The Psychologist Report discloses that the Defendant is ‘an impulsive individual with low frustration tolerance, poor emotion control, and inadequate problem solving ability. He is impulsive and shortsighted; as such he tends to act hastily and pay no heed to the consequences of his actions. For him, psychosocial stressors, and particularly those arising from his close relatives, like interpersonal difficulties, deception and provocation, are likely to bring him anxiety and intense discomfort and therefore he tends to demonstrate exaggerated emotionality which appears to be closely related to the development of the current offending behaviour’. The clinical psychologist recommended professional counseling focusing on his conflict resolution, mood management, and problem solving skills.

14.The letters from the family members of the Defendant and the various reports before me all reflect the genuine remorse felt by the Defendant for what he has done and that he has reflected on his misdeeds. In view of his previous criminal history and the nature and circumstances of the present offence, his risk of re-offending in a similar manner would be low.

15.The appropriate starting point for a single count of burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.

16.In ‘Sentencing in Hong Kong’ by Cross & Cheung, 5^th edition, the authors wrote, at page 357:-

“If the accused suffers from a mental disorder, less weight will be given to general deterrence. As Wood CJ explained in R. v. Henry [1999] 106 A Crim R 149, 254:

  “The community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably, there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice.”

17.I have also borne in mind that the victim and her family have forgiven the Defendant for what he has done. His sister has also indicated in the letter that she did not wish to pursue the claim for the damage caused by the Defendant. In HKSAR v. Wong Siu-kwan Cr App 166/2001, Woo JA indicated

“While it is true that a sentence cannot be tailored according to the views of the victim because of the intervention of the state and it is a matter for the court which will have to consider a wider sphere of public interest as well as reasoning and precedent, the court should have regard to what the victim has to say, relating to how the offence was committed, how seriously he was hurt, mentally and physically, how he has been affected by the offence, and whether the imposition of a particular sentence would add to his distress and concern, especially when the victim’s views are rational and intelligent.”

18.As I have said, this is not the usual burglary of domestic premises. I am satisfied that taking into account the nature and circumstances of the burglary and that the Defendant does suffer from mental illness, I can depart from the guideline sentence. The reports indicate that the Defendant is not presently in need of inpatient treatment by way of a hospital order. Professional counseling focusing on his conflict resolution, mood management and problem solving skills are recommended. I accept that nothing was stolen from the premises and that the Defendant has recognized that he had made a big mistake and a grave error in judgment.

19.I take as a starting point 12 months’ imprisonment, discount this by one-third to reflect his plea of guilty, and further discount this to reflect the mitigation put before me as well as the particular nature and circumstances of the offence and of the Defendant, and sentence him to 6 months’ imprisonment.

20.I have considered whether there are exceptional circumstances to warrant my suspending this sentence. In R. v. Lowery [1993] Crim LR 225, 226, Steyn LJ said that the term ‘exceptional circumstances’ was wide enough to entitle the court to take account of all the relevant circumstances surrounding the offence, the offender and the background. The cumulative effect of mitigation advanced can also influence the issue of suspension : AG v. Yeung Kwok-chi [1989] 1 HKLR 266, 269. I am satisfied that taking into account the nature and circumstances of the burglary and of the Defendant and that the Defendant does suffer from mental illness, that he has been remanded in custody whilst the reports were being prepared, and the background of this case, I find that there are exceptional circumstances to warrant my suspending the sentence. The sentence of 6 months’ imprisonment shall be suspended for a period of 2 years.