HKSAR v. CHAN KA MING

DCCC 1093/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1093 OF 2009

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Reasons for Sentence

1.  The defendant is a resident of a domestic premises on the 1^st floor of a residential building in the Western District of Hong Kong. In the afternoon of 3 September 2009 (Thursday), shortly before 5.30pm, the defendant climbed into the kitchen of the victim’s premises one floor above his own via the kitchen window of the victim’s premises. His act of climbing into the victim’s premises was seen by the victim.

2.  The victim locked up the kitchen door to prevent the defendant from getting into the living room. She also reported the matter to the police. When the victim heard banging sound on her kitchen door, she screamed aloud to let the defendant know she had already reported the matter to the police.

3.  When the victim heard no more noise coming from within the kitchen, the victim opened the kitchen door and found the defendant to have left. The victim noticed the doorknob of her kitchen door to have been damaged and a cooking spatula was left on the floor.

4.  Police later arrived to make investigation and found the defendant on the 1^st floor with an injured arm with a fresh injury. When questioned, the defendant admitted having climbed into the victim’s premises. The defendant gave the excuse that he only intended to collect abandoned items from within the premises. In court the defendant admitted to have entered the premises with the intention to steal. He maintained he was entering the premises with an intention to steal when he was interviewed by the psychiatrist and the psychologist.

5.  The usual mode of sentence for burglary to domestic premises with an intention to steal is well recognized to be a term of 3 years imprisonment (as in Chan Yiu Man CACC-36/1988, and the same approach was currently endorsed by the Court of Appeal in the case of Lau Bing CACC-138/2008)

6.  The defendant is aged 19 and was born in the mainland in 1990. He and his younger brother stayed with their mother in the mainland until he was 8 years of age. When he was 8 years old he and his younger brother were granted one way permits to come to stay with his father in Hong Kong. His mother came for family reunion a year later.

7.  In 2003 the defendant was confirmed to have limited intelligence. His sexual impulse led to a number of incidents involving his social worker and a school girl, whom the defendant made sexual advances. In the years of 2005 and 2006 the defendant was convicted of the offences of indecent assault for which he had been sentenced to the rehabilitation centre and the training centre. For the present offence he was adamant that he was entering the premises with an intention to steal, whilst some of those who had interviewed him had reservation about his genuine motive. Since the defendant was convicted on the basis of an intention to steal, this court ought to sentence him solely on the basis of his intention to steal.

8.  The defendant was assessed to have an intelligence quotient of 76. His verbal intelligence was assessed to be 94 and his nonverbal intelligence (including his motor skill, his visual-spatial organization, his attention and concentration level) was estimated to be 52. His mental age was assessed to be roughly 13 years and 9 months. Apparently he seems to have no problem with maintaining his work commitments such as helping to collect plastic bottles in the area where he resides.

9.  None of the various reports seems to have any suggestion for a possible resolution to instil in the defendant the proper normative conduct and etiquette for the development of a normal sexual relationship. But as I have indicated earlier on, this court though concerned about his mental capacity, his psychological well being and his risk to society on account of his sexual propensity, this court ought not be distracted by the fact that, from a purist point of view in the application of sentencing principles, this court should only sentence him on his intention to steal.

10.  The events certainly brought upon apprehension and unrest on the girl in the flat. An intrusion to a person’s home for the deprivation of his or her property has all along been considered to be a serious crime since everyone is entitled to enjoy a sense of safety and security in his or her own home. On account of the defendant immature mental age, I adopt a lower starting point of 2½ years imprisonment. The strongest mitigating factor is the defendant’s plea of guilty indicting his remorse. I accord him 1/3 discount and sentence him to a term of 20 months imprisonment instead.

11.  I certainly hope, in course of time, the social welfare and the correctional services institutes could develop alternative modes to help those who have mental deficiency in learning proper social norms.