HKSAR v. TSE HOK MAN

DCCC406/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 406 OF 2011

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  Defendant, you pleaded guilty before me to the following charges. Charge 1, Theft; Charge 3, Theft; Charge 5, Robbery and Charge 6, going equipped for stealing. There were two other counts or charges on the indictment. Charges 2 and 4, you pleaded not guilty to those and the prosecution have asked that they remain on the file, not to be proceeded without the leave of this court or a higher court and I make that order.

2.  The facts upon which I convicted you are briefly as follows. 

Charge 1

3.  At about 10 am on 3 October 2010 you, defendant, stole a handbag that had been left briefly unattended on a chair inside the Sunrise Christian Community.  The Sunrise Christian Community is an organisation located on 4th Floor of a building in Yau Ma Tei.  Later, that same day at about 8 pm, you defendant, were stopped by a police officer.  The police officers having been on the look out for a man of your description.  The description having been obtained by detectives looking at CCTV recordings of the scene. 

Charge 3

4.  About 6 pm on 17 February 2011 you stole various items, namely a wallet, a wrist watch and a mobile telephone from a locker in the staff changing room or staff store room at a restaurant in Olympian City, Mongkok.  The locker had apparently been left unattended for a very short period, namely two minutes.  On the following two days, that is, 18 and 19 February an attentive cleaning worker, saw you, defendant loitering in the area, became suspicious, alerted his superiors who then contacted the police. Once the police arrived you were stopped, questioned and arrested. 

Charge 5

5.  At about 3.30 pm on 17 February, that is, the same day as Charge 3, and on this day, you defendant used a cutter to hold up or rob one Miss Lam who was leaving the staff changing room or staff store room.  You, defendant, held the cutter in your hand and declared “Robbery” whereupon Miss Lam went back to her locker, took some red packets containing a small amount of cash and gave them to you.  Miss Lam told her colleagues about the robbery, but I note, not the police, at least not at this time, and when the defendant was arrested on the 19th, thanks to the attentive cleaner, he was also charged for this robbery offence.

Charge 6

6.  Going equipped for stealing.  The basis of this charge is the possession of the cutter upon your arrest on 19 February and your admission that you had it with you for another robbery. 

Mitigation

7.  Mr Fu, who appears for you, defendant told me something of your history and emphasised your stroke which took place in 2007 and he told me how this stroke had altered your behaviour.  I was also told that in addition to the fact that you are divorced with two children, that you have been detained in Sui Lam since your arrest on 19 February this year. Today is 26 August so you have been at Siu Lam for now six months.  When you pleaded guilty, I called for a background report and a further psychiatric report on you.  I am told this morning, those reports have been read and explained to you, as well as being read and explained to your mother and to your sister, who are here in court.  And I am told that it is your wish, as well as that of your family, that you get help for your psychiatric condition.

8.  It thus falls to me to consider imposing a hospital order pursuant to Section 45 of the Mental Health Ordinance, Cap.136. The imposition of such an order is open to me provided that you have been convicted of an offence for which the sentence is not fixed by law and provided that I am satisfied on the evidence of two registered medical practitioners that, a) you are mentally disordered and b) the nature and degree of your mental disorder warrants your detention.  When considering the use of a hospital order, I consider the protection of the public and the interests of you, defendant. 

9.  Let me turn briefly to the reports.  I have been provided with a Probation Officer’s background report and it is comprehensive. It has been written and compiled in less than ideal circumstances in the sense that I get the impression that the Probation Officer had some difficulty finding out about your background from you.  The report provides some detail about you, defendant, and whatever else can be said about you, it is quite clear that at least until your stroke in 2007, you worked hard, you contributed to the welfare of your siblings, your own family and your mother. 

10.  I also have before me two reports from registered psychiatrists.  The first report is from Dr K W Chow, who is a visiting psychiatrist at Siu Lam.  His report is dated 19 August 2011.  His opinion is that you, defendant, are suffering from “An organic brain syndrome with frontal lobe feature.”  And Dr Chow therefore recommends a hospital order under Section 45 for a period of six months at Siu Lam. 

11.  The second report is from one Dr Oliver Chan, also a visiting psychiatrist at Siu Lam.  His report is dated 23 August 2011. Dr Chan has reviewed the file notes, the reports of his colleagues, Dr Kevin Chow and Dr Fiona Tam which were written in March of this year.  He has reviewed your background, defendant, and he has had three interviews or sessions with you; 21 July; 28 July and 2 August.  Dr Chan concludes that in his considered opinion you, defendant, have “An organic brain syndrome marked by significant personality changes after your stroke in 2007.”   He goes on to recommend a hospital order for a period of six months.  He also states that there is space available for you at the Siu Lam Psychiatric Centre.

12.  Given the opinions of Dr Chow and Dr Chan I am satisfied of the following three things; a) that you are a mentally disordered person; b) that the degree of mental disorder warrants your detention at Siu Lam Psychiatric Centre; and c) that, bearing in mind all of the circumstances of all of the offences and your character and your antecedence, and considering the alternative methods of dealing with you then the most appropriate method of tackling sentence in this case is to impose a hospital order. 

13.  The sentences that I therefore impose on you are as follows.  I respect of Charge 1, I order that you be detained at Siu Lam Psychiatric Centre for a period of six months and I make that order under Section 45 of the Mental Health Ordinance.  For Charges 3, 5 and 6 on each of those charges I make an identical order.  All or each of these orders are to be entirely concurrent with each other.  Those are the sentences and those are the orders that I make in this case.