HKSAR v LAU FEI YUEN

DCCC 1168/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1168 OF 2008

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to two charges of burglary of domestic premises contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210.

2.  In summary the defendant burgled two flats in Ying Yat House, Yat Tung Estate in Tung Chung in the early hours of the 13th September and 14th September 2008.  At the time of the burglary on the 13th September the premises were occupied. 

3.  In the first burglary one desktop computer and one LCD monitor were stolen.  The LCD monitor was later recovered.  In the second burglary one game player and $120 were stolen. 

4.  The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is three years imprisonment.  Where the defendant has committed more than one offence of a similar nature at different times a higher sentence than if there had been only one offence is appropriate (see Attorney General v LUI Kam-chi [1993] 1 HKC 215). 

5.  In passing sentence I have carefully considered everything said on the defendant’s behalf by Mr Ho, including that the defendant was fully cooperative with the police. 

6.  The defendant suffers from mild grade mental retardation.  I am told he has a mental age of a child of seven.  Accordingly I was asked to call for psychiatric reports to ascertain whether the defendant was fit to be tried.  The reports show that the defendant knew what he was doing, that it was wrong to steal and that he is fit to stand trial.

7.  The defendant is not a fresh offender.  He was last before the court in May 2008 for common assault and theft.  In June 2007 the defendant appeared in the District Court (DCCC 228/2007) charged with burglary and theft, also from flats in Ying Yat House.  I have had the opportunity of reading the reports called for in that case and the judgment of His Honour Judge Li, which has been translated to me orally by my interpreter.  Judge Li was prepared to depart from the guidelines for burglary on account of the defendant suffering from mild grade mental retardation and imposed a sentence of eight months imprisonment for the reasons set out in his judgment.

8.  In HKSAR v CHIU Peng, Richard [2002] 1 HKC 401 the Court of Appeal accepted that a court may properly allow a discount in sentence where a defendant is suffering from mental illness which played a part in the commission of the offence.  The court said the justification for a discount in sentence by reason of mental illness was, “…as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind. He knew that it was wrong to commit the crime, but he did not appreciate that the commission was as serious as it was: the degree of culpability was thus lessened. Or, as in this case, the accused’s mental illness made him gullible and easily susceptible to persuasion by the perpetrator of the crime, reducing his responsibility for participating”

9.  The previous sentence has evidently not deterred the defendant from committing burglary.  Notwithstanding his limited intelligence the defendant, as told to the police, suggested to his accomplice to commit burglary and thereafter looked for unlocked flats.  This shows a degree of premeditation. 

10. There is no suggestion the defendant’s mild grade mental retardation played a part in the commission of the offences.  I do not accept his criminality or culpability was in anyway diminished.  The defendant was clearly told by Judge Li but for the special circumstances the sentence should have been one of two years imprisonment.  Whilst I am sympathetic to anyone suffering from mental disability I am satisfied that on this occasion no discount should be given by reason of the defendant’s mild grade mental retardation.

11. What I am however prepared to do is give a discount of sentence on account of the defendant’s admissions to the police and the owner of the first home without which Miss Leung has confirmed the prosecution would not have been able to secure convictions. 

12. Mr Ho submits the best place for the defendant is placement in a support hostel for the mentally disabled.  I am advised by Mr Ho that the defendant was offered a place in the support hostel in March last year, however due to commission of further offences, for which he was imprisoned in May 2008, that offer lapsed.  The defendant is now on the priority list but it is unclear when the defendant will again be offered a place in the support hostel.  I have been asked to sentence the defendant today.

13. The defendant is to go to prison however I trust while he is serving his sentence those who are trying to place him in the hostel will continue to make representations on the defendant’s behalf so that a place may be available on his release from prison.  I hope a place will be available and the defendant can benefit from the services provided by the hostel.  The defendant must be told if he continues to commit crime, in particular burglary, his sentences will get longer.

14. Giving the defendant full credit for his pleas of guilty, taking three years as my starting point on each charge, sentences are reduced to two years imprisonment.  By reason of the defendants cooperation with the police I further reduce the sentence on each charge to fifteen months imprisonment. 

15. Both charges are separate and distinct committed on two separate nights and on two different homes.  Consecutive sentences are therefore appropriate however taking into account totality of sentence I order only 3 months consecutive and 12 months concurrent making a total sentence of 18 months imprisonment which I am satisfied properly reflects the defendant’s criminal culpability on these two charges. 

16. The defendant is sentenced as follows:

Charge 1 - 15 months imprisonment; and

Charge 2 - 15 months imprisonment 3 months consecutive and 12 months concurrent to charge 1.