HKSAR v. HO SIU KIN

DCCC 977/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 977 OF 2015

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

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

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

Reasons for Sentence

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

1.   The defendant has pleaded guilty to two charges of burglary, contrary to the Theft Ordinance.  Both premises involve shops in the Kowloon area that are under renovation.

2.   The 1st charge involves such shop in the early hours of the morning, the date being 16 September 2015.  The defendant broke into a shop under renovation and took out of the shop some tools.  They include fans, an air pump, an electric saw, a trolley and some other miscellaneous items.  The victim estimated the value to be about $5,000.

3.   The defendant after picking up all these items tried to engage a minivan driver to pick him and the stolen items up. That driver was unable to communicate properly with the defendant about the details of the order.  That driver got suspicious, refused to take the order and made a report to the police.  Ultimately, the defendant left the items on the pavement a couple of streets away from the premises.  The owner recovered all these items after discovering the burglary the next morning.

4.   Charge 2 happened on the following day when the defendant targeted another shop under renovation and broke in.  A staff member of the company renovating the premises returned to work at about 7.50 am to find the entrance opened.  He went inside to find the defendant there.  That staff member called the police immediately.  The defendant was then caught red-handed.

5.   The defendant admitted under caution the offence and told the police he was looking for tools to sell for quick money. He was about to leave with tools worth about $2,000 when the staff member came back to work. 

6.   Later, at the police station, in subsequent interviews the defendant fully co-operated with the police and made full admissions of both charges. 

7.   The defendant’s plea is his best mitigation.  He has many convictions.  He has appeared in court 13 times and has a total of 19 convictions.  He has one previous for burglary committed in 2012.  Almost all his other convictions relate to offences of dishonesty. 

8.   On the last occasion I heard mitigation in full and Miss Chow has said all she can on behalf of the defendant.

9.   The defendant is now 37 years old.  I have had a letter of mitigation.  I have been told the defendant is illiterate and I have been given details of the school he attended when he was young. When he first started primary school, he was diagnosed as having mild grade intellectual disability.  He attended a school suitable but did not complete his education. 

10.   On the last occasion Miss Chow said she had some difficulty getting full and proper instructions for mitigation.  There was also a social worker who attended court and very helpfully gave the court more details about the defendant’s background.  She too was of the view that when she interviewed the defendant, his instructions were not very clear.

11.   Defence counsel said despite the defendant’s mental disability, it seemed that no court in the past had ever had him assessed professionally.  I called therefore for two reports, background report and a psychologist’s report, adjourned to today.   I do not intend to repeat the details.  I have considered them all.  They give a full picture of the defendant’s background.  His family were interviewed, and I know their history. Clearly, there are difficulties in his relationship with his family, but I see they are here today to support him.

12.   I take into account particularly the psychologist’s conclusion in paragraph 9 that the defendant does indeed fall within the range of mild grade mental retardation.  I quote, “He was extremely poor in verbal reasoning and abstract thinking.  His adaptive functioning was below average though he could maintain a reasonable level of self care and live independently, yet he failed to sustain a stable employment and his social skills were poor.”

13.   The defendant has had some employment but only on and off.  He has applied for social welfare assistance, but because he did not follow up with the applications, the assistance provided was not consistent. He would also be entitled to disability allowance, but he has refused to have an assessment done to facilitate this application. 

14.   Clearly, the defendant is committing these offences for money.  Sadly, he wants the money because he has a habit of visiting prostitutes.  He fully admits this.  Because he does not get enough money on social welfare or from his parents, he has resorted to crime.

15.   The psychologist is of the view he has poor social judgment and self-control.

16.   The defendant is certainly smart enough to know that shops under renovation are easy targets and that tools are worth money when sold in Sham Shui Po.  He knows what he does is wrong.  He even has said that he would not commit big crimes any more like burglaries because the consequences are more serious.  However, he is not confident that he will be able to stop offending.  The psychologist says the same thing in his conclusion that the risk of re-offending is very high.   His opinion is that the defendant requires psychological treatment to help. 

17.   I now have a full picture of the defendant’s background history and mental capacity.  However, I am also sure the defendant on his own admission knows his behaviour is wrong. 

18.   Defendant, please stand up.

19.   Now, the normal starting point for a burglary of non-domestic premises is 2½ years’ imprisonment.  Having considered all the reports, I do not see any reason to depart from that starting point. In fact, if you continue to commit offences of dishonesty, the court may take the view that you are a recidivist and increase that starting point.  So please take this as a warning. 

20.   I take a starting point of 2½ years for each offence, but you have pleaded guilty and you are entitled to a discount of one-third.  After that discount is applied, for each charge, you are sentenced to 1 year and 8 months’ imprisonment. 

21.   I take into account the totality principle and the offences were committed one day after the other.  I will order that 2 months of Charge 2 be served consecutively to Charge 1 and the balance concurrently.  Therefore, for both offences, you are sentenced to a total of 1 year and 10 months.  Do you understand that sentence?

DEFENDANT: Understand.

22.  Right. I am also going to ask that a copy of the psychologist’s report be passed to the Correctional Services Department for their records.  I also order that you receive psychological treatment as deemed necessary whilst serving the sentence.  Do you understand?

DEFENDANT: Understand.

23.  That is the end of my order, but I am going to add this.  When you are released from this sentence, please do approach the Society of Rehabilitation and Crime Prevention as well as the Social Welfare Department because if you make proper applications and comply with their applications, you could be entitled to more living expenses to spend on your daily expenses, living and board, so that you do not have to sleep in the street or in the park.  They can also assist you with employment if you want.   Do you understand all those?

DEFENDANT: Understand.