HKSAR v. WONG CHI HONG

[English Translation – 英譯本]
CACC 24/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 24 OF 2012

(ON APPEAL FROM DCCC NO. 725 OF 2010)

________________

JUDGMENT

Hon Barnes J (giving the judgment of the Court):

1.  The applicant was charged with two counts of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210 Laws of Hong Kong, to which he pleaded guilty before District Judge Longley. On 26 January 2011 the learned judge sentenced him to 24 months’ probation for the two charges. Subsequently, in a report dated 6 January 2012, the probation officer complained that the applicant had breached the probation order and asked the court to discharge the order. On 10 January 2012, the applicant appeared before District Judge Stanley Chan and agreed with the contents of the probation report. Thereupon, the learned judge considered the sentence afresh and in the end sentenced the applicant to 12 months’ imprisonment for each of the two charges, which were to be served concurrently, making a total term of 12 months’ imprisonment. The applicant applies for leave to appeal the sentence.

Agreed facts

2.  The facts were that on two consecutive days, namely 14 and 15 May 2010, the applicant sneaked into the same flat.  On the first occasion, no one was in the flat, and the applicant stole $6,000 cash and a mobile phone worth $2,800.  On the second occasion, when he tried to steal again, he was discovered by the occupant of the flat.  He fled without stealing anything.

3.  The applicant was arrested on the very night of 15 May.  He admitted under caution that he stole approximately $2,000 from the flat on 14 May 2010 and that, having spent all the stolen money, on 15 May he tried to sneak into the flat again to steal.

Applicant’s background

4.  The applicant is now 21 years old.  He has two conviction records for two counts of theft, for which he had been put on probation for 12 months. However, he breached the probation order and was accordingly sentenced to two weeks’ imprisonment instead.

5.  The information shows that the applicant suffers from moderate mental retardation and does not have a proper job.  In addition to the thefts which came before the courts, he had stolen the belongings of his fellow students and of a voluntary worker at the school where he studied.  He had also stolen things from his father’s workshop.  In May 2004, he was cautioned by a police superintendent after he stole a motor cycle.

District Judge Longley’s reasons for sentence

6.  Despite the applicant’s record of having breached a previous probation order, District Judge Longley considered the applicant’s background and the fact that a social worker was able to find a place for the applicant at a sheltered workshop cum hostel, and, in light of that, sentenced him to probation for 24 months.  The probation was made subject to conditions, including that the applicant had to be of good behaviour and that he had to keep in touch with the probation officer.

Breach of the probation order

7.  In the report dated 6 January 2012 the probation officer stated that there were occasions on which the applicant did not stay at home during holidays but instead lingered at video game centres, and that he had repeatedly stolen things and attacked inmates and staff members in the sheltered workshop.  Besides, he damaged various articles in the hostel during his occasional temper outbursts. By reason of his unsatisfactory behaviour, he was expelled from the sheltered workshop cum hostel on 15 October 2011.

8.  After the applicant ceased to work and reside at the sheltered workshop cum hostel, he spent all his time at video game centres.  The applicant strongly denied that he had engaged in any illegal activity, but his parents were very concerned about him.  His father asked him to work at an air-conditioner repair company but he refused.  The probation officer commented that the applicant had performed poorly during the probation period, that he had failed to comply with the probation order, and that he had disregarded the probation officer’s advice and guidance. The officer concluded that the probation order was of no use whatsoever to the applicant and therefore recommended that the order be discharged.

District Judge Chan’s reasons for sentence

9.  Having considered the applicant’s records, age and mental ability, District Judge Chan took the view that the detention centre, the training centre and the rehabilitation centre were all unsuitable for the applicant.  In light of the special circumstances of the applicant, the learned judge considered it necessary to take “an exceptional approach”.  He adopted 18 months’ imprisonment as the starting point for each charge and reduced it to 12 months on account of the applicant’s guilty plea.  The sentences were ordered to run concurrently.  The learned judge exhorted the applicant to keep his promise to work at his father’s place, and also hoped that the applicant’s parents could positively put the applicant under their supervision.

Application for leave to appeal

10.  The applicant was initially unrepresented.  On 29 March 2012, at the hearing of the applicant’s application for leave to appeal against sentence, Cheung JA adjourned the case and allowed the applicant to be represented by Counsel.  He also ordered that a clinical psychologist’s report and a psychiatrist’s report be prepared and submitted to the court.

Clinical psychologist’s report and psychiatrist’s report

11.  The clinical psychologist opined that the applicant possessed adequate cognitive ability to understand that stealing was unlawful, and that the applicant’s stealing activities were motivated by his desire to obtain monetary gains.  The psychiatrist did not consider that the applicant was suffering from any psychiatric disorder.

Grounds of appeal

12.  Mr. Bernard Yuen, Counsel for the applicant, has put forward two main grounds of appeal:

(1) Before he considered the sentence afresh, District Judge Chan did not consider discharging or decide to discharge or in fact discharge the 24-month probation order imposed on the applicant by District Judge Longley.  Therefore, in respect of the two charges, the applicant is subjected to a probation order and a custodial sentence of imprisonment at the same time, which is wrong both in principle and as a matter of procedure.

(2) In imposing a custodial sentence on the applicant, District Judge Chan did not have sufficient regard to the applicant’s special circumstances (particularly the fact that he was suffering from moderate mental retardation), and the custodial sentence was not passed after properly balancing the need to assist the applicant in his rehabilitation, the interests of justice and the interests of the general public.

13.  In relation to ground (1), Mr. Yuen relies on section 3A of the Probation of Offenders Ordinance, Cap. 298 Laws of Hong Kong, which provides that an offender in whose case a probation order is made shall not be sentenced further, and submits that District Judge Chan therefore erred in passing the custodial sentence without discharging the probation order and that the probation order should have been discharged.

14.  As for ground (2), Mr. Yuen cites paragraph 5-301 of Archbold, which states that, even for a serious offence, probation may be considered where the defendant suffers from a psychiatric condition, because in such a situation the court must consider and strike a balance between his duty to the public on the one hand and, on the other hand, the order which can most properly assist the defendant in the given circumstances.

15.  Mr. Yuen submits that, although the psychiatrist’s report states that the applicant does not display any sign of a psychiatric disorder, the above mentioned principle, namely the paramount consideration is to assist the defendant in his rehabilitation and integration into society rather than to punish him, should be equally applicable to a mentally retarded person.  Mr. Yuen asks this Court to reverse or set aside the decision of District Judge Chan.

16.  Mr. Yuen also submits that the applicant started serving the custodial sentence on 10 January 2012 and has therefore been serving almost half a year of the term of sentence.  Mr. Yuen urges this Court to set aside the District Judge’s decision so that the applicant can be released forthwith.

Respondent’s reply

17.  On behalf of the respondent, Ms. Chiu, Acting Senior Public Prosecutor, points out in reply that what District Judge Chan was  dealing with at the hearing was the recommendation made by the probation officer for a discharge of the probation order against the applicant.  At the outset (paragraph 1) of his Reasons for Sentence, the learned judge made it clear that the applicant had breached the probation order and that he had to consider the sentence anew.  In light of the overall circumstances of the present case and taking into account the word “afresh” used by the learned judge, it is obvious that he had no intention to allow the probation order to stand.  It is submitted that the applicant’s allegation that the learned judge imposed a custodial sentence on top of the probation order is untenable. 

18.  The respondent also relies on the relevant part of section 4(6) of the Probation of Offenders Ordinance, Cap. 298 Laws of Hong Kong (i.e. “… where the probationer is sentenced for the offence for which he was placed on probation, the probation order shall cease to have effect.”) and submits that the applicant’s probation order had ceased to have effect.

19.  As regards ground of appeal (2), the respondent submits that, according to the sentencing guideline laid down by the Court of Appeal, the starting point upon conviction for the offence of burglary in a residential property is imprisonment for 3 years.  Where the defendant’s mental ability is lower than average and there is evidence that although he knew what he did was wrong, he could not fully appreciate how wrong it was, then that will be regarded as a mitigating factor: R v Taylor [1983] 5 Cr App R (S) 241 and R v Harvey [1984] 6 Cr App R (S) 184,186.

20.  The respondent submits that, although the applicant is suffering from moderate mental retardation, the clinical psychologist’s report stated that the applicant knew he was doing something wrong and that the offence was merely motivated by his desire to obtain monetary gains.  It is submitted that the applicant’s conduct and motive were no different from those of the defendants in the usual cases of offences involving dishonesty.  Notwithstanding that, District Judge Chan treated the applicant leniently by considering sentencing options other than an immediate custodial sentence.  However, as the applicant had been assessed to be unsuitable for admission to a training centre, and taking into account his special circumstances and his conviction records for similar offences, as well as the fact that he had previously been incarcerated and neither the detention centre nor the rehabilitation centre was considered suitable for him, the only viable sentencing option was an immediate custodial sentence.  It is submitted that the learned judge had taken into account all the circumstances, and the starting point of 18 months that he adopted is lower than that set out in the sentencing guideline by as much as 50%.

21.  The respondent submits that, while there are mitigating factors, the gravity of the case and the need for deterrence cannot be overlooked.  The applicant broke into the same residential unit on two consecutive days to steal, and such conduct was outrageous.  The respondent maintains that an immediate custodial sentence is the only appropriate sentencing option, and that the starting point and final sentence imposed by District Judge Chan are neither wrong in principle nor manifestly excessive.

Our views and considerations

22.  In respect of ground of appeal (1), we accept the respondent’s submissions.  Although in passing sentence District Judge Chan did not expressly say that the probation order in question was discharged, when everything is put in context — he was dealing with an application by the probation officer to discharge the probation order and he clearly said that he had to consider the sentence “afresh” — his intention to set aside the probation order should become obvious.  Even if he did err in not discharging the probation order so that it co-existed with the custodial sentence, this Court would be in a position to rectify the mistake.

23.  Having said that, in order to avoid misunderstanding, the court should have made a formal order discharging the probation order.  We hope that in future the courts will bear this in mind when dealing with similar applications.

24.  Turning to ground of appeal (2), in sentencing the applicant District Judge Longley did consider his background.  Even though the applicant had previously been put on probation for theft and had breached the probation order, the learned judge still gave him a chance.  As the probation officer had found a place for him at a sheltered workshop cum hostel where he could work and reside, the learned judge put him on probation again.  However, the applicant did not treasure this chance at all.  He repeatedly violated the probation order not only by continuing to  steal, but also by going on to attack inmates and staff members and damage various articles in the hostel.  He was expelled from the sheltered workshop cum hostel due to his unsatisfactory performance.  This being the case, the probation officer quite justifiably concluded that the probation order was of no assistance to the applicant.  To continue to put the applicant on probation would not serve any useful purpose.

25.  In light of all the circumstances pertaining to the applicant at the material time, we are unable to discern any proper sentencing approach other than imposing an immediate custodial sentence.  In view of the applicant’s previous convictions and his persistent transgressions of the law notwithstanding the fact that he had been repeatedly punished, we do not think that a community service order is an appropriate option.

26.  The applicant had previously been sentenced to two weeks’ imprisonment for breach of a probation order.  This short-term imprisonment apparently did not have any deterrent effect on him because he continued to commit the offence of theft.  District Judge Chan had taken into account the applicant’s special circumstances and reduced the usual starting point of 3 years’ imprisonment to 18 months accordingly. He also ordered that the 12-months term for each of the two charges to run concurrently.  We do not consider this sentence of 12 months’ imprisonment to be wrong in principle or manifestly excessive.

Conclusion

27.  For the above reasons, we dismiss the application for leave to appeal the sentence. For the sake of caution, we also formally discharge the probation order against the applicant.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.