R. v. SINGH HARDIP RICKY

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1293 OF 1996

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J U D G M E N T

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1. The Appellant was convicted after a trial of burglary and was sentenced to 18 months imprisonment. He was seen climbing out of a ventilation window from a domestic unit in Fung Hing House in Chaiwan. Property including a gold plate and cash were stolen. He originally appealed against conviction and sentence. Mr Allan for the Appellant informed me that the Appellant had now abandoned his appeal against conviction and he appealed against sentence only.

2. The Appellant was 21 years of age. It was a case of burglary of domestic premises during day time and the property stolen was not substantial. The magistrate considered imprisonment an appropriate sentence and he adopted a starting point of 18 months imprisonment having regard to the serious nature of the offence of burglary.

3. The Appellant had applied for a review of his sentence before the magistrate. At the review, the Appellant's then legal representative informed the magistrate that the Appellant's family intended to send him back to India where he could stand a better chance of rehabilitation. The magistrate was also informed that the Defendant had intended to plead to the offence at the very first instant and he was now very remorseful. Sentence was confirmed on review by the magistrate.

4. The Court of Appeal decision of Lo Ching Fai App. for Review 12/95 referring to the decision of AG v. Lui Kam Chi (1993) 1 HKC 215 indicated that the well established starting point for a single offence of burglary of domestic premises committed by a first offender of full age in circumstances unattended by either particular aggravation or particular mitigation was a period of three years. The starting point of 18 months adopted by the magistrate was well below this level. Perhaps the magistrate was prompted to take a more lenient view because of the age of the Appellant.

5. The Appellant had a record of previous convictions starting from 1989 and the last being in May 1996. These convictions involved various offences ranging from assaults, theft and minor offences of loitering. This is his second conviction for burglary. The magistrate in his findings regarded the Appellant as a persistent offender.

6. The Appellant was not in good health. There was a medical report before the magistrate indicating that he was suffering from subacute bacterial endocarditis i.e. a heart disease cause by bacteria. Mr Allan submitted that the Appellant's illness was a serious one and there was no up-to-date report on his health condition. He urged that it was a mitigating factor if the Appellant was seriously ill. Serious illness is always a factor to consider in mitigation and I think, before I could dispose of this appeal I should call for a medical report on the Appellant to do the Appellant justice.

7. The medical report had now been submitted to me and this set out the Appellant's medical history. The Appellant was treated for his illness in QEH and QMH each for a short period, one period after the other. On each occasion, he discharged himself against medical advice and returned to the Lai Chi Kok Remand Centre. The last time he was treated in QMH was in April and he requested discharge back to the Lai Chi Kok Remand Centre despite the fact that he was told of the risk of the disease. He did not want specialist treatment. He preferred to have the medical care in the institution. Why he adopted such a curious attitude without regard for his own health interest was not explained. However, certainly from what had transpired, the Appellant had deliberately refused better medical treatment. It may be because he thought by so doing, he would aggravate his medical condition and thereby prompting this court to take a sympathetic view and reduce the sentence on ground of ill health. If the Appellant had that in mind, that would be a mistake. Where his medical condition was aggravated by his own deliberate act, his medical condition carried very little weight in mitigation.

8. The Appellant is at present not without medical care and there is no risk to his life. Having regard to his initial intention to plea to the offence, his health condition and his family's indication to assist him in rehabilitation and his age and record, the magistrate's sentence of 18 months imprisonment cannot be regarded as wrong or manifestly excessive in any way. The appeal against sentence is dismissed.

9. The appeal against conviction is dismissed on abandonment by the Appellant.