Is Crazy a Mitigation Factor?

The four classical principles of sentencing enumerated by Lawton LJ in James Henry Sergeant (1974) 60 Cr App R 74 “retribution, deterrence, prevention and rehabilitation” are drawn upon once an offence is committed. An offence may require the court to draw upon a certain principle or a number of principles from the aforementioned case, but in cases where the offender suffers from a psychiatric ailment, such as kleptomania, at the time of the commission of the offence it is suggested that the element of general deterrence should be given less weight as was evident in the Singaporean case of Goh Lee Yin v Public Prosecutor [2006] 1 SLR 530.

In Goh Lee Yin, the appellant was suffering from kleptomania, an impulse control disorder that causes a recurrent urge to steal objects typically not for personal use or monetary gain. The appellant pled guilty to two charges of theft and was sentenced to two and a half months’ imprisonment which was, on appeal, varied to a sentence of 24 months’ probation due to her psychiatric ailment. The court’s detailed assessment of kleptomania is to be applauded as a custodial sentence may not be the most appropriate form of rehabilitation for an individual who is suffering for kleptomania. In fact, the impact of incarceration on an individual’s self-esteem may be hardly conducive to a rehabilitative environment. Ideally, when one is undergoing therapy familial support is an integral element and a prison environment is not conducive to receiving the required emotional familial support due to the limited visiting hours.

In an ideal world probation would be imposed regardless of the value of the item stolen as “general deterrence will not be enhanced by meting out an imprisonment term to a patient suffering from a serious mental disorder which led to the commission of the offence” (para 29 Goh Lee Yin). However, “in deciding whether or not probation is the appropriate sentence in each case, the court still has to take into account all the circumstances of the case, including the nature of the offence and the character of the offender” (para 27 Goh Lee Yin) as rehabilitative prospects should be premised not on “mere prognostication or unfounded optimism, but on realistic and practical considerations.” (para 51 Goh Lee Yin)

However, in Hong Kong it appears that the courts are reluctant to adopt the optimal approach to ameliorating recidivism in cases involving kleptomaniacs. In HKSAR v Lam Hau Ling, HKSAR v Lun Ching Yee and HKSAR v Li Ho Wai kleptomania was only deemed to be a mitigating factor. Arguably, this approach disregards the fact that there is a lack of criminal intent due to kleptomania. Only in HKSAR v Ngai King Ying was the term of imprisonment, of an individual with a history of theft, varied to a suspended sentence after the judge noted that the appellant was suffering from dysthymia and kleptomania; and after the appellant managed to convince the court of her willingness to seek further treatment for her condition.

It is suggested that the approach stated in Public Prosecutor v Goh Lee Yin and Another Appeal [2008] 1 SLR 824 should be adopted in Hong Kong, due to its persuasive authority, as therein a two-step process was proposed for dealing with cases involving kleptomaniacs:

1) The court must be satisfied that the offender concerned has been rigorously diagnosed as suffering from kleptomania by an independent psychiatrist.

2) After this is judicially assessed to be correct, the starting point must necessarily be that rehabilitation forms the primary focus of the sentencing process such that deterrence, both specific and general, must necessarily play a significantly more muted role. (para 137)

Take-away points

To avoid imprisonment, persuade the court that:

  • There is a detailed rehabilitation plan
  • The Defendant can rebuild his/her life in a new environment
  • The Defendant will continue to receive familial support during this process

Solicitor, GPS McQuhae (Hong Kong)

Anna Lau is Litigation Consultant at GPS McQuhae LLP in Hong Kong. A biomedical engineer by training, prior to her embarkation onto her legal career, Ms Lau had worked closely with the United States Patent and Trademark Office (USPTO) and US Food and Drug Administration (FDA) on intellectual property and FDA regulatory work.

Her unique skill set enables her to expertly deal with Technology/Intellectual Property law, being able to use an engineer’s perspective to understand each individual client’s need and advise them in their own (tech) language. Anna was part of the team that represented the successful Defendant in one of Hong Kong’s first cryptocurrency litigation.