Hon Barnes J (giving the judgment of the Court):
原訟法庭法官張慧玲頒發上訴法庭判案書 ：

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.
申請人被控兩項「入屋犯法」罪，違反香港法例第210 章《盜竊罪條例》第11(1)(b) 及 (4) 條。申請人在區域法院法官龍‍禮席前承認兩項控罪。龍‍禮法官在2011 年1 月26 日就該兩項控罪判處申請人接受感化24 個月。其後，感化官在2012 年1 月6 日的報告中指申請人違反感化令，要求法庭撤銷感化令。在2012 年1 月10 日，申請人在陳‍廣‍池法官席前同意感化報告的內容。陳‍法官重新判刑，就兩項控罪，分別判處申請人12 個月監禁，同期執行，總刑期12 個月。申請人不服判刑，提出上訴許可申請。

Agreed facts
承認案情

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.
案情顯示，申請人在2010 年5 月14 日及15 日接連兩日，潛入同一涉案單位；首次單位內無人，申請人成功偷竊現金 $6,000及一部價值 $2,800的流動電話。翌日，他重施故技時，被單位戶主發覺，未能成功偷竊便落荒而逃。

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.
申請人在5 月15 日當晚被捕。警誡下，申請人承認在2010 年5 月14 日在涉案單位偷取了約 $2,000，花光了錢後便在5 月15 日再嘗試進入涉案單位偷竊。

Applicant’s background
申請人背景

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.
申請人現年21 歲。先前有兩項偷竊刑事紀錄，被判處接受感化12 個月，但申請人違反感化令，被法庭改判兩個星期監禁。

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.
資料顯示，申請人屬中度智障，沒有正當職業。除了法庭已知悉的偷竊事件外，申請人曾在他就讀的學校偷竊同學和一名義工的物品；他亦曾在父親的工場進行偷竊。在2004 年5 月，他因為偷竊一輛電單車而遭警司警誡。

District Judge Longley’s reasons for sentence
龍‍禮法官的判刑理由

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.
雖然申請人有違反感化令的前科，龍‍禮法官在考慮了申請人的背景後，仍然在社工能夠幫助申請人找到庇護工場宿舍後，判令申請人接受感化24 個月。感化條件包括申請人須行為良好及須與感化官保持聯絡等等。

Breach of the probation order
違反感化令的內容

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.
根據感化官在2012 年1 月6 日的報告中指出，申請人在假日曾沒有按照指示留宿家中，在遊戲機中心留連。他亦曾多次在庇護工場內偷竊和襲擊院友和工作人員。他亦曾發脾氣、破壞宿舍物品。由於申請人的行為未如理想，在2011 年10 月15 日他被逐出庇護工場。

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.
申請人不再在庇護工場宿舍工作和住宿後，終日在遊戲機中心留連。雖然申請人極力否認他曾從事任何不法工作，申請人的父母對他的情況非常關注。申請人的父親曾要求他到冷氣維修公司工作，但遭申請人拒絕。感化官認為申請人在感化期間表現差劣、不遵照感化命令，亦不理會感化官的教誨。感化官認為感化令對申請人毫無作用，要求撤銷感化令。

District Judge Chan’s reasons for sentence
陳‍法官的判刑理由

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.
陳‍法官在考慮了申請人的前科、年齡和智商後，認為勞教中心、教導所和更生中心非適合申請人。陳‍法官認為基於申請人的特殊情況，他須作出一個「特殊的處理方法」，就每項控罪他以18 個月為量刑起點，因為申請人認罪而減為12 個月，同期執行。陳‍法官亦強調申請人須依從承諾，到其父親的地方工作。陳‍法官亦希望申請人父母能真正監管申請人。

Application for leave to appeal
申請上訴許可

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.
申請人原本沒有律師代表，在2012 年3 月29 日，在上訴庭法官張澤祐席前申請判刑上訴許可時，張‍法官將案件押後，批准申請人由律師代表出庭。另外，張‍法官下令索取申請人的臨床心理和精神科報告。

Clinical psychologist’s report and psychiatrist’s report
臨床心理學家及精神科醫生報告

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.
臨床心理學家認為申請人有足夠的認知能力，明白盜竊是非法的，申請人盜竊的動機是希望能獲金錢利益。精神科醫生認為申請人沒有任何精神病況。

Grounds of appeal
上訴理由

Mr. Bernard Yuen, Counsel for the applicant, has put forward two main grounds of appeal:
申請人代表袁‍國‍華大律師基本上提出兩個上訴理由：

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.
陳‍法官在重新判刑前並無考慮、決定或實行撤銷由龍‍禮法官判處申請人的24 個月感化令，因此就該兩項控罪，申請人同時有感化令及被判處監禁，原則上及程序上均犯錯。

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.
陳‍法官在判處申請人入獄時，沒有充分考慮申請人的特殊情況 (尤其是申請人是中度智障的情況)，判處他入獄並不符合協助申請人改過自新、公義及社會利益的平衡考慮。

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.
就上訴理由 (1)，袁‍大律師依賴香港法例第298 章《罪犯感化條例》第 3A條，指出在所犯案件中被判令接受感化的罪犯，不得被進一步判處刑罰。因此陳‍法官在沒有撤銷感化令的情況下，判處申請人監禁是錯誤的，該感化令應被推翻。

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.
就上訴理由 (2)，袁‍大律師引用權威著作Archbold第5-301 段，引述作者指當一名被告人有精神病患時，即使罪行嚴重，仍然可以考慮判以感化，因為在此情況下，法庭一方面要考慮對社會人士的職責，另一方面要考慮在有關情況下，最能夠妥善協助被告人的判令是甚麼，以平衡兩者。

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.
袁‍大律師指出，雖然精神科醫生報告指申請人並無任何精神病的跡象，但考慮了上述原則：即以協助申請人改過自新和融入社會為前提，而不是以懲罰申請人為重點，該原則應該同樣適用於一名有智障情況的人身上。袁‍大律師要求本庭推翻或撤銷陳‍法官的判決。

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.
袁‍大律師亦指，申請人自從2012 年1 月10 日已經開始服刑，實質上已服了近半年的刑期，故懇請法庭撤銷陳‍法官的判令，令申請人可以即時獲釋。

Respondent’s reply
答辯人的回應

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.
答辯人代表署理高級檢控官招‍秉‍茵回應指，陳‍法官在審訊時是處理感化官向法院提出解除申請人的感化令的要求。陳‍法官在判刑理由書的第1 段已開宗明義，指出申請人違反感化令，他須重新判刑。縱觀事件的來龍去脈，加上陳‍法官使用「重新」二字，明顯他並無保留感化令的意思。申請人指陳‍法官在感化令上另外判處監禁是沒有根據的。

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.
答辯人亦依賴香港法例第298 章《罪犯感化條例》第4(6) 條有關的條文 (即「…. 如受感化者因導致其被判接受感化的罪行被判處刑罰，則有關的感化令即告失效。」)，指申請人的感化令已告失效。

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.
就上訴理由 (2)，答辯人指，根據上訴法庭訂下的判刑指引，一名人士在住宅物業內干犯入屋犯法罪，一經定罪，判刑的起點是3 年。假如一名被告人的智商較一般人為低，而有證據顯示他雖然知道自己犯錯，但不能完全理解錯誤的嚴重性，法庭是會視之為減刑的因素：R v Taylor [1983] 5 Cr App R (S) 241及R v Harvey [1984] 6 Cr App R (S) 184, 186。

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%.
答辯人指，本案的申請人雖屬中度智障，但根據臨床心理學家報告，申請人知道自己犯錯，而他犯案的動機祇是希望從中得到金錢上的利益。答辯人認為申請人的行為動機與一般干犯不誠實罪行的被告人無異。儘管如此，陳‍法官對申請人寬大處理，他首先考慮了即時監禁以外的判刑選擇，不過申請人較早前被評定為不適合進入教導所，另外申請人的狀況特殊和過往有同類的定罪紀錄，加上曾被判監、勞教中心和更生中心，對申請人均不適合，唯一可行的判刑選擇祇有即時監禁。陳‍法官已經考慮了所有因素，採納18 個月監禁為量刑起點，有關的量刑起點足足較判刑指引輕一半。

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.
答辯人指，本案存有一定減刑的因素，不過，同時亦不能忽略案件的嚴重性，須要加以阻嚇。申請人接連兩日侵入同一個住所進行盜竊，行為猖獗。答辯人認為即時監禁是唯一的合適判刑選擇。陳‍法官採納的量刑起點及最終判刑均並非原則性犯錯或明顯過重。

Our views and considerations
本庭作出的考慮

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.
就上訴理由 (1)，本庭接納答辯一方的陳詞見解。雖然陳‍法官在判刑時並無明確指出有關的感化令已被撤銷，但縱觀上文下理，基於當時他處理的申請是感化官要求法庭撤銷感化令，而他亦明言他「重新」判刑，所以明顯他的目的是將感化令撤銷。即使陳‍法官確是犯錯，沒有正式撤銷感化令而使感化令與監禁共存，本庭可作出修正。

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.
誠然，法庭應正式作出撤銷感化令的判令，以避免發生誤會。本庭希望以後法官在處理同樣申請時能注意此點。

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.
就上訴理由 (2)，事實上，龍‍禮法官在判刑時，已考慮了申請人的背景，即使申請人已經有因為盜竊而被判感化和曾違反感化令的前科，龍‍禮法官仍給予申請人一次機會，在感化官代申請人找到庇護工場給他工作和有宿舍供他住宿時，仍判處他接受感化。但申請人根本毫不珍惜這個機會，他不止一次違反感化令，不單繼續其盜竊行為，更加有襲擊院友、工作人員和破壞宿舍物品此等行徑。申請人亦因為其行為未如理想，而被逐出庇護工場。在此情況下，感化官認為感化令對申請人並無作用，這個看法是正確的。繼續判處申請人接受感化根本毫無作用。

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.
以申請人當時所有情況，除了即時監禁外，本庭實在看不到有其他恰當的方法處理。基於申請人的前科及屢罰屢犯的情況，本庭不認為社會服務令是一個恰當的考慮選擇。

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.
申請人以往曾因違反感化令而被判處兩個星期監禁，明顯這個短期監禁對他完全沒有阻嚇作用，因為申請人繼續干犯偷竊罪行。陳‍法官已經考慮了申請人的特殊情況，因此將一般的3 年監禁量刑起點調低至18 個月的量刑起點。陳‍法官亦判令兩項控罪的12 個月監禁同期執行。本庭不認為12 個月監禁此刑期有任何原則性的錯誤或明顯過重。

Conclusion
總結

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.
基於上述理由，本庭駁回申請人就判刑的上訴許可申請。為了謹慎起見，本庭亦正式撤銷申請人的感化令。

Ms. Samantha Chiu, Acting Senior Public Prosecutor of the Department of Justice, for the HKSAR
答辯人：由律政司署理高級檢控官招秉茵代表香港特別行政區

Mr. Bernard Yuen, instructed by Yip & Partners on assignment by the Legal Aid Department, for the Applicant
申請人：由法律援助署委派葉偉全律師事務所轉聘袁國華大律師代表