HKSAR v. NGAI HON KUEN

 DCCC1237/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1237 OF 2009

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Reasons for Sentence

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1.  The defendant pleaded guilty to an offence of burglary at a shop at Marina Cove.  It was a metal engineering company that had some money in a metal box.  It was locked up on 6 October.  In the early hours of 7 October, the glass door of the shop was found smashed and broken, and the defendant was found coming out of the shop and he had on him cash that had been in the box.  That was over HK$1,900 and some 10 Dirhams banknotes.  The defendant eventually told the police that he had been returning his uniform to his former employer and decided to burgle the shop as he went past it.  He had smashed his way and then taken the money inside the box. 

2.  Now, all the facts are admitted and I convicted the defendant.

3.  Now, the defendant is 27 years old.  He is of clear record, and there are special circumstances in the defence in this case in that he suffers from a mild-grade mental retardation, and this is something that has been observed from childhood.  It is obviously relevant to his sentencing.  And because of that, I obtained probation officer’s report and also a psychologist’s report.

4.  The conclusions of the probation officer’s report are quite useful.  It sets out some of the defendant’s background.  The defendant is a mild-grade mentally retarded young man brought up under institutional care.  His own mother was mildly graded mentally retarded as well.

5.  Now, the report tells me that the defendant worked hard at special school to equip himself for social relationship and open employment.  He developed a successful career in cleansing and has been able to live an independent life and contribute to his family income, including one of his young siblings who is a mild-grade mentally retarded girl in a small group home.  And since 2001, the defendant has been the sole support of his family.

6.  Now, the defendant, because he is easily led, fell in with some certainly a person who was quite dubious and got him into financial trouble, and this is described as leading to indebtedness, loss of job and betraying his own family.  And the defendant has reflected on his misdeeds and feels shameful towards his own family.  And the probation officer concludes that because of his good employment history and clear record, it indicates the problem may be met at an early stage, and it is thought that the defendant should stand a good chance to turn a new leaf and reform himself in the future.

7.  I have a similar assessment from the clinical psychologist of the Correctional Services Department.  The conclusion from the clinical psychologist is that the defendant has moderate-grade mental retardation.  He was assessed to be poor in abstract thinking, social reasoning, social judgment and anticipating the consequence of actions.  He has low esteem and feelings of inadequacy.  His insight into his problems is limited and has got himself into a difficult situation with unmanageable financial problems.  He has poor problem-solving skills and weak consequential thinking.  He could think of no other way to solve his financial problems and so committed this offence.

8.  Now, in view of his criminal history and nature of the present offence, his risk of re-offending was estimated to be low.  Now, psychological treatment focusing on his problem-solving, work habit and family relationships was recommended.

9.  It appears to me to sentence this defendant on the same basis as one would sentence a non-mentally retarded person would be not correct.  Now, there is a case called R v Harvey 6 Cr App R 184.  It says that persons such as this defendant may understand something is wrong without understanding the nature of it or in their description of the case without understanding that it is wicked.  I think they mean by that the gravity of the offence.

10.  Now, it is quite clear the defendant understands that what he has done is wrong, and that is something that caused him to feel shame and stress.  The defendant clearly will need at some point further psychological treatment to assist him in living an independent life.  The defendant clearly understands what he has done is wrong, and there must be some element of punishment in the sentence that I impose upon him.

11.  In dealing with defendants such as this, the court has a range of what I call blunt instruments.  They are not necessarily readily crafted to deal with a person such as this.  The defendant has done wrong.  He understands that, and I have the option of a sentence of imprisonment.  Imposing the normal sentence for a non-residential burglary may be somewhat harsh on this defendant, but a non-custodial option such as probation order may be unnecessarily lenient to the defendant given that he is fully aware that what he did was a wrong thing and he should not have done it. 

12.  The defendant clearly for rehabilitatory reasons will need some kind of ongoing counselling.  He is aware of that and would appear to be manageable or managed within the family background, and this does not appear to be a case where I necessarily need to make any formal order in respect of that to ensure that he does have that form of counselling.

13.  Now, having given some consideration to this, I consider that the appropriate sentence is one of imprisonment.  The defendant is fully aware of the wrong that he has done and naturally will have to be punished for that.  To suspend the sentence of imprisonment is not appropriate.  It is not necessarily in the interest of justice that such a sentence would be suspended.

14.  What I shall do is in fact reduce the starting point that would normally be taken in a case of non-residential burglary.  Normally, the normal starting point for such a burglary would be 30 months’ imprisonment.  I shall reduce that to 18 months’ imprisonment, having regard to the factors that are peculiar to this defendant which I have already outlined.  Such a sentence will be further reduced by one-third to reflect the plea of guilty.  That will lead to a final outcome sentence of 12 months’ imprisonment.