CRIMINAL CASE NO. 28 OF 2012
COURT: The defendant has pleaded guilty to one count of attempted robbery, Count 1, and one count of indecent assault, Count 2.
The facts of the case are on file. In short, the defendant followed a 13 year old girl home in an old tenement building accessible only by stairs. She had just finished school and was in her school uniform while the defendant lived in a totally different area.
The rest I quote from the Summary of Facts agreed through the parties. The most relevant parts go as follows. These are paragraphs 2, 3, 4, 5 of the Summary of Facts. I will not read them out. To complete the picture the girl ‘X’ was not seriously hurt during the fall.
Two months later, on 22 August 2011, the defendant was arrested. Under caution he said what he did was for fun and later declined to make a statement in a proper interview. His Octopus card put him in the locality at the time near the offence and a pubic hair of his was found at the scene.
The defendant is aged 25, born and raised in Hong Kong, he was a graduate from City University. At the time of the offence he was the head of information technology in a finance company. He had a steady girlfriend but lived with his parents; father, taxi driver, mother, housewife. He had no previous conviction. In 2007 he was given the HKSAR Scout Award, the equivalent of Queen’s Scout and made assistant scout leader of the East Kowloon Scout Group.
In mitigation it was advanced as a major contention that the defendant was suffering from schizophrenia and that he committed the offence under the compulsion of some forces that said the girl was wicked and deserved punishment.
What triggered this contention or the inquiry that gave rise to it, was a conversation between the defendant and a clinical psychologist in Lai Chi Kok Reception Centre. As a result of which the defendant’s family and CSD both sent in their psychiatrists, Dr Lim and Dr Chow, respectively, to have the defendant examined in Siu Lam Psychiatric Centre where he had been transferred.
The history of this inquiry plus the input of magistrates, who being concerned with the defendant’s mental condition ordered for reports, are outlined in an attached document named “Chronology”.
Having had the benefit of the relevant reports, two by Dr Lim, three by Dr Chow and one by Siu Lam’s own clinical psychologist, Carly Chan, and also Dr Lim’s live evidence, I am satisfied that the defence contention of schizophrenia, a shorthand phrase to include the notion of voice compulsion, is unfounded. My reasons are as follows.
Compared to Dr Lim, who had seen the defendant twice, Dr Chow’s clinical involvement in the matter was clearly superior in quantity, 14 sessions in all. Miss Chan in her own right had also examined the defendant two times. She supported Dr Chow’s conclusion that the defendant was malingering.
Dr Lim did not impress me as a great individual for details. His reports were short and broad brush. An example is his reference to tactile hallucination as a strong indication of the defendant’s schizophrenia (paragraph 3 of his second report plus oral evidence). This was based on hearsay from the sister.
When asked if it could be explained by the defendant’s dermatological problems noted in paragraph 5 of his first report, the impression he gave was first being caught unawares, then attempting for an answer, then conceding that it was an idea that warranted further exploration.
Other examples have given rise to greater concern. His readiness to accept the defendant’s account of carrying a knife in town as part of a scout’s everyday practice, without at least asking what kind of knife it was is one. The conclusion that there was no gain for the defendant to pretend to be mentally ill by confining the discussion to the extreme case where the defendant was to be found unfit to plead is another.
The suggestion, against all common forensic experience, that no educated person would, unless psychotic, confess or more precisely make the statement that the defendant had done under caution is a third one. These examples, to be found in Dr Lim’s reports and/or oral evidence, all point to a lack of balance and judgment.
By contrast Dr Chow was detailed, discursive and well argued in his reports. He recorded matters that Dr Lim did not or could not adequately explain. An example is the defendant’s initial avoidance of discussion of the index offence (the first two sessions on September 16 and 27) to be followed by a period of professed oblivion of self and the charge against him (October 20, 27 and November 1, 8 and 22) and the final revelation that he was acting under compulsion (November 29 onwards).
Apart from the many consistency problems in his behaviour (see Dr Chow’s first and second reports) this development sits ill with the fact that he told Dr Lim of the voices at first encounter (September 14) and was reportedly greatly remorseful. There is nothing in either of Dr Lim’s reports that the defendant had at any stage lost touch with reality.
It is impossible not to think that there was much pretence and affectation in the defendant’s presentation to Dr Chow.
In reading the Agreed Facts one is confronted by a strong sense of indulgence in what the defendant did to his victim. The things he said were flippant. His conduct unnecessarily agonising, by which I mean photographing the girl, whether or not real, and the threat of rape and fellatio. This sits ill with someone who was conscious of his condition (paragraph 8, Dr Lim’s first report) and had not entirely given up resisting the voices (Dr Lim’s oral evidence).
Conversely, what Dr Lim had been told was a much watered down version of events, with the defendant admitting to only touching the girl’s breasts. No mention was made to the demand for fellatio and masturbation.
The defendant’s reaction upon being cautioned also weakens his compulsion claim. The reference to just having fun and thereafter remaining silent seems to me to be incompatible behaviour for a struggling mental patient. It is another point to which Dr Lim could provide no adequate answer.
With schizophrenia out of the way what I am left with at most is a young man who had had problems with his parents and who had problems holding down jobs (reference counsel’s written mitigation). Indeed, it is possible that this culminated in a frustration that on the day was just enough to make the defendant take it out on the victim. But that is the best permissible light in which to see him; a first offender acting completely out of character.
In the absence of evidence on the type of knife used - it could have been a pocket knife that some people do lawfully carry around - I am prepared to treat the offence as unpremeditated. What I will not do, however, is to view the attempted robbery and indecent assault as entirely one incident.
I agree that on a fair reading of the facts the former may appear almost like an excuse to the latter, but the defendant has pleaded guilty to both and the charges are of a completely different nature.
Finally, it is said that the defendant pleaded guilty solely out of remorse. I am in no position to confirm or disconfirm it, but current judicial thinking is that merit arising out of remorse should in a normal case be regarded as met in the one-third discount on a guilty plea. Here there is the extra dimension of the defendant malingering.
I should also point out that objectively speaking the evidence against the defendant is overwhelming. DNA evidence from the pubic hair was, I am told, available by 22 December 2011 and also less sophisticated evidence like identification and Octopus card data, I presume. So it would be foolhardy for the defendant to have done anything but indicate a plea of guilty on the next return date, December 30. On 20 January 2012 the plea was formally entered and the matter was committed to the High Court for sentence.
In sum, this is a bad as opposed to a grave case of attempted robbery and indecent assault. It was perpetrated with a weapon and on a class of victims, young girls returning from school, which the Court of Appeal has pronounced a duty to protect, HKSAR v Chan Chi Hou, CACC1 of 1997. In all probabilities it had been saved from further aggravation by the girl victim ‘X’ keeping her wits.
Taking into account everything that can be said for the defendant, a clear record, unpremeditated and acting out of character, the plea of guilty, the proper starting points for Counts 1 and 2 should in my judgment both be 4 years.
With the customary one-third discount it will be reduced to 2 years and 8 months. To reflect their separate and individual criminality, however, I order 1 year and 4 months of the sentence in Count 2 to run consecutively to the sentence in Count 1, thus giving a total of 4 years.
I sentence the defendant to a total of 4 years’ imprisonment.