HKSAR v. Chan Yiu Bun

DCCC685/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 685 OF 2011

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Reasons for Sentence

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1.The defendant has pleaded guilty to one offence of burglary that occurred on 8 November 2010 in the Staff Quarters, Ling Yan Monastery in Lantau Island.

2.It appears that some time on 8 November 2010 those premises were burgled because the door of an attic was secured with padlock and left at about 2.30 on the afternoon.  At about 4 o’clock in the afternoon of the same day the padlock was found to be broken and the door ajar.  A locked drawer in the attic had been prised open and cash of HK$1,100 and a mobile phone valued at $3,000 had been stolen.    

3.The left palm print of the defendant was found outside of the door of the attic. 

4.On 11 January 2011, the defendant was arrested. At the time he denied the offence but now he admits it.  I convicted the defendant.

5.The defendant’s antecedents were put before me including his criminal record.  The defendant is now 37 years old.  He clearly has some kind of mental retardation. 

6.He has eight previous criminal conviction records.  In 1990, the earliest one, he was placed on probation for assault with intent to rob.  He has committed burglary on a number of previous occasions. In 1996, he was placed on probation for that offence, and again in 1998.  In 2004, he received a sentence of imprisonment for burglary. 

7.In April 2011, the defendant pleaded guilty to three offences of burglary and is currently serving a sentence in total of 26 months’ imprisonment.  I understand that this offence was committed whilst the defendant was on bail in respect of those offences for which he was later sentenced.            

8.The defendant has a somewhat unfortunate background.  In the past, and in respect of this offence as well, psychiatric assessment has been sought.  The defendant does not suffer from a treatable psychiatric disorder, so he is fit to plead.        

9.The defendant has as early as 1990 been diagnosed with mild grade mental retardation.  It appeared to me from these reports that the problem the defendant suffers from is psychological, not psychiatric.  When the defendant was sentenced to 26 months’ imprisonment, it would appear to me that no psychological report was obtained, the judge relying on the psychiatric report and a background report. 

10.In terms of sentencing, it is often noted that people with low intellectual functioning do not respond well to deterrent sentencing.  Their capacity to understand its nature is retarded as is their other mental capacity.    

11.I obtained a psychological report on the defendant.  The defendant was observed to be easily distracted and frustrated. He had been educated.  After school, he obtained employment.  He has been known to Mental Health Services since 1990.  He had at one time been in a sheltered workshop.  That was not successful. 

12.The assessment of the defendant was obtained. As the psychologist certainly observed, the defendant was easily distracted and pre-occupied.  His full scale IQ obtained a score of 60.  His intellectual function is estimated to be within mild grade range of mental retardation.  He shows attention-seeking and dependency tendencies.  He has adopted a carefree attitude, and has a non-diligent lifestyle as an adult.       

13.His criminal behaviour is largely property-related and non-violent.  He has partial insight towards his offending behaviour.  He has no significant difficulties in understanding right or wrong and the consequences of his behaviour.  It is considered that active psychological intervention is not necessary but community support would be beneficial.   

14.He admitted to committing the present offence out of greed.  It would appear from the defendant’s criminal record that he is in danger of becoming a chronic offender, a recidivist.  The previous sentences of imprisonment do not appear to have acted as a deterrent, neither has probation.   

15.In terms of sentencing for this offence, I approached it on the basis the defendant is already serving a lengthy sentence. I must look at the overall totality.  Given the defendant is already serving a lengthy sentence of imprisonment, there would appear to me to be no other option available to me than a sentence of imprisonment.  I cannot even begin to approach sentencing on the basis of the psychologist’s report’s recommendation for community support. 

16.All I can do in effect is pass a sentence of imprisonment, bearing in mind its inefficiency in deterring the defendant from committing further crime, which is not necessarily due to its criminal nature but due to his mental retardation.  This is a very unfortunate case.      

17.I shall approach this by adopting the normal starting point for sentence in respect of a burglary of this nature.   

18.Although this is the staff quarter block, I shall approach it as being a non-domestic premises.  The defendant is entitled to a one-third discount.  That means the sentence on this offence would be 20 months’ imprisonment.    

19.Having regard to the overall totality of sentence that the defendant is now serving, I shall order that 3 months of this sentence to be served consecutively to his existing sentence, and the balance of 17 months concurrently. 

20.There is a complication has arisen with this sentence that relates to the length of time the defendant still has to serve on the existing sentence.  One of the points I was making is that this offence occurred in November 2011, the defendant was sentenced for the three burglaries on 21 April 2011.  If he had been sentenced for these four burglaries on 21 April 2011, I think it is most likely the judge would have continued his existing policy of just adding 3 months for each subsequent burglary.  That was what I wanted to achieve with the sentence.  In other words, the defendant would serve 3 extra months’ imprisonment. 

21.I am told that the sentence of 20 months’ imprisonment that I have imposed and ordered to serve 3 months of that consecutive to his existing sentence will not achieve that effect because the defendant only has 7 months left of his existing sentence to serve, so my 20 months or the 17 months remaining cannot run alongside that 7 months.  It is also somewhat complicated by the fact that the Correctional Services Department will give further remission on top of the 20 months, which will bring it down to somewhere near 13½ months’ imprisonment.

22.So I am attempting to achieve an order that will in fact give the defendant the 3 months consecutive he would have got if he had been sentenced on 21 April 2011 in respect of this offence together with the other offences.

23.So I have to calculate the sentence, that is the head sentence, before I order part of it to be consecutive orconcurrent that will run alongside the 7 months’ imprisonment that the defendant still has to serve in respect of the existing sentences.  That would appear to me to be a sentence of 10 months’, somewhere around about 10 months’ imprisonment, given that the Correctional Services Department give remission on that sentence. 

24.The other calculation I made is if I imposed a sentence of 12 months’ imprisonment and ordered 3 months of that to be served consecutively, then the Correctional Services Department would take that as being a sentence of 8 months’ imprisonment to be served concurrently with the remaining existing sentence of 7 months’ imprisonment, which should provide room for the 3 months to be served consecutively. 

25.So, gentlemen, I have not drawn up the order yet, so I am in a position to rectify what I have said earlier, and I would simply, instead of imposing a sentence of 20 months’ imprisonment, I would impose a sentence of 12 months’ imprisonment, 3 months of which run consecutively to his existing sentence and the balance of 9 months would run concurrently.

26.I believe that will achieve what I intended, but even I am subject to Correctional Services Department’s calculations of the sentences, but I hope that will achieve what I intended in my earlier ruling, so I will rectify the sentence to one of 12 months’ imprisonment, so that would mean a starting point of 18 months’ imprisonment, reduced to 12 months’ imprisonment, 3 months to be served consecutively to the existing sentence, and 9 months concurrently.