HKSAR v. Chan Ka Ming

DCCC603/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 603 OF 2011

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant enters a plea of guilty to one charge of “Burglary”, brought against him under section 11(1)(a) and (4) of the Theft Ordinance, Cap. 210.

Facts

2.The facts to which the defendant agrees are as follows. 

3.The defendant lived in the flat immediately below the burgled premises.  On the morning of the offence, he climbed up one floor and entered the kitchen via a half-opened window.  An occupier of that flat heard in the living room noises coming from the kitchen.  He opened the kitchen door only to find the defendant standing there.  He confronted the defendant who remained silent. 

4.Police officers were called to the scene.  They arrested the defendant, who admitted under caution that he had climbed into the burgled flat, but had not stolen anything yet. 

Conviction

5.By entering a guilty plea to the charge, the defendant admits entering the burgled premises as a trespasser with the intent to steal.  The court finds the defendant guilty as charged.

6.The defendant has had three criminal records prior to his current conviction, including one of burglary for which he was sentenced to 20 months’ imprisonment. 

Mitigation

7.In mitigation the defence puts forward the following matters for the court’s consideration.  The defendant, aged 20, is still a young person.  He used to work at a supermarket, at which his father was a supervisor, his mother manned a fresh meat stall, and his younger brother worked as an odd-job worker.  Upon his release from prison in February 2011, the defendant started working as a kitchen hand in Pizza Hut until his arrest for this burglary charge on 10 May 2011.

8.Counsel for the defence asks the court to give due credit on account of the defendant’s guilty plea. 

Background Report

9.The defendant was born on the mainland in 1990 and was noted to be a slow learner.  He began to talk and walk at the age of four.  When he was six years old, he received a surgery to correct his gait.  He was generally quiet and did not communicate well with others.  

10.He came to Hong Kong in 1998 when he was eight.  To look after him and his younger brother (who has also come to Hong Kong), his mother travelled here frequently on a visitor visa until 2002 when she was granted a one-way permit.  

11.The defendant has completed his primary studies, but was noted to have behavioural problems. 

12.In 2003, a clinical psychologist assessed the defendant to be of limited intelligence; he scored 76 in an IQ test.  Because of this, he has been an easy target for bullying at school. 

13.His Form Two studies were interrupted when he was found guilty of offences of indecent assault for which he was sent to the Rehabilitation Centre. In 2006, he received psychiatric treatment to control his sexual impulse.

14.On the day of the offence, the defendant slept in a park after work and he returned home at 6 am.  He had a sudden impulse of breaking into his neighbour’s premises to steal.  He fought that urge, knowing it wrong to burgle, but was in the end overcome by this desire which has become uncontrollable.  There really was no reason for him to steal, for he has had several thousand dollars with him. 

Psychologist’s Report

15.A clinical psychologist has conducted an assessment on the defendant.  Her opinion is as follows. 

16.The defendant is able to carry out a normal dialogue;  his power of expression has improved when compared with his last assessment 18 months ago. 

17.His overall intelligence was assessed at 76 in 2010.  On the basis of his adaptive functioning, he has reached the mental age of 13 years and nine months on the Scales of Independent Behaviour-Revised Short Form. 

18.The defendant’s sexual-related problem has died down after 2006.  He is noted to have a communication block with his mother, resulting in a misconception of lack of warmth and care. 

19.Borderline intelligence and an early onset of anti-sociality figure prominently in the defendant’s profile.  Psychological intervention focussing on improving communication, expectation, and relation between the defendant and his parents is recommended. 

Psychiatrist’s Report

20.The psychiatrist who conducted an examination on the defendant opined that the defendant has borderline intelligence and dissocial personality disorder. 

21.The defendant is noted to be impulsive and unable to experience guilt or to learn from adverse events. 

22.A hospital order is not indicated, and the defendant is mentally fit to serve a prison sentence.

Discussion

23.Burglary involves breaking into private property with the intention to steal.  There is a clear public interest in protecting private dwellings from unauthorised invasion.  Once burgled, even when extra anti-theft devices are installed, there will always be a lingering feeling that the home is no longer safe. 

24.When a dwelling place is burgled, there is always a chance of occupants being inside, who may take action to protect their belongings, leading to severe consequences. 

25.The offence of burglary has become all too common in Hong Kong. 

26.In view of these factors, the Court of Appeal has laid down a sentence guideline of three years’ imprisonment in cases where domestic premises are burgled (HKSAR v Lau Pang [2004] 3 HKLRD 565). 

27.The defendant in this case is a repeat offender.  There is no justification not to adopt the guideline sentence. 

28.Sentences should be individualized, however. Apart from the defendant’s guilty plea, the court takes note of the defendant’s mental age of 13 years and nine months, his dissocial disorder, and his misconception of lack of parental care and attention, and is of the view that a further discount in sentence is warranted. 

Conclusion

29.In the result, the court would adopt a starting point of three years, which is reduced by one-third on account of the defendant’s guilty plea to one of two years’ imprisonment.

30.An extra six months’ reduction should be given on account of the defendant’s mental disability. 

31.The court recommends that psychological treatment and counselling should be provided to the defendant in prison.

Order

32.The defendant is sentenced to a term of imprisonment of 18 months.