HKSAR v. LO KAM-HO, DANIEL

DCCC796/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 796 OF 2010

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Reasons for Sentence

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1.  The defendant pleaded guilty to one each count of false imprisonment and of criminal intimidation before Judge Longley on 1 December 2010. On 22 December 2010, upon perusing various reports on the defendant, the learned judge leniently passed a probation order for 18 months. In his reasons for sentence, the learned judge remarked that:

“Bearing in mind that you have already experienced prison life for nine weeks, and because I believe that you are capable of resolving your problems and that you now have family and responsible friends to support, I am prepared to take the risk of following Mr Lane’s recommendations and impose a probation order, subject to certain conditions. I want to make it clear that this is an exceptional course that I am taking. You are unlikely to be given such a chance ever again. If you fail to comply with the conditions attached to the order, you will be brought back to court and may be sentenced again for these two offences. Almost certainly that will mean you going to prison.” (Paragraph 21 and 22 of the Reasons for Sentence)

2.  The message from the learned judge cannot be more clearer and, obviously, he wanted to give the defendant a chance, particularly, when the probation officer said that the defendant has been a victim of family violence following multiple family shattering and inevitably lacking parental love in his development. 

3.  What happened after the imposition of the probation order shows that the rehabilitative approach to sentence by the learned judge was totally disregarded and/or not valued by the defendant.  The defendant is now brought back to court to face the consequence of his double wrongdoings: the offences that he had committed and the failure to comply with the probation order. 

4.  I was told the defendant was found taking cannabis and ice.  Counsel for the defendant now asked this court to call for a DATC report and also a further probation report.  It was submitted that the defendant was anxious to kick off the drug habit.  When asked, I was told that the defendant was found in possession of cannabis back in 2007 for which he was fined $3,000 for two counts of simple possession.  One of the conditions of the present probation order to which the defendant agreed to abide was that the defendant should abstain from consumption of dangerous drugs.

5.  I have perused the reasons for sentence, the two probation officers’ reports, the psychologist’s report and the detention centre suitability report.

6.  Out of the two charges, the offence of false imprisonment perpetrated by the defendant was more serious.  The defendant has three previous convictions back in March 2007.  He got a fine.  The victim in the present case was his former girlfriend.  On the day in question the defendant begged her to resume relationship but the victim refused.  The defendant prevented the victim from leaving the house and even threatened her that he would drug her so as to make the victim addicted.  The defendant even used a roll of adhesive tape and plastic straps to gag her mouth and to tie the victim’s thumbs. 

7.  Although there was no suggestion that the victim sustained any physical injury, it certainly was a terrifying ordeal to her. Clearly it was a premeditated offence.

8.  The defendant failed to treasure his luck back in December last year when he was given a probation order.  In my judgment, the facts and the nature of the offences warrant an immediate imprisonment term. 

9.  There is no sentencing guideline for these offences.  The maximum sentence for the offence of false imprisonment is 7 years, while that of criminal intimidation is 5 years. 

10.  I have considered the defendant’s unhappy childhood and upbringing, even though they could never be an excuse for him to commit the crime. 

11.  The defendant wrote a mitigation letter saying that he wants to have external help to get rid of the drug habit.  He wants and is determined to be a responsible person in society.  Defence counsel also tendered a mitigation letter in English by a Buddhist Nun, Master Sik, and pleaded that a lenient sentence be imposed. 

12.  On the 1st charge of false imprisonment, given the fact that it was premeditated and tape and straps were used, I take a starting point of 18 months.  Given the defendant’s plea and his personal upbringing, I reduce the sentence to 12 months. 

13.  On the 2nd charge of criminal intimidation, again it is fact-specific.  There was no evidence to suggest that the defendant had actually had the dangerous drugs with him.  I would adopt a starting point of 6 months and reduce the sentence to four months. 

14.  Taking into account of the totality principle and treating the defendant in lenient terms, I order that these two sentences be served concurrently.  That means I sentence the defendant to 12 months for these two offences.

15.  I would like to stress that the defendant is still young and he has the support of his friends and many others.  Ultimately it is the determination of the defendant himself if he wants to get rid of the drug addiction.  No one can help him except himself.  The defendant had a sad upbringing, that is past history and it can never provide any justification or excuse for the defendant to do any wrongdoings.  I do urge the defendant to learn a lesson and make the right decision to turn a new leaf.