HKSAR v. FREDERICK DAVID PENNEY

DCCC294/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 294 OF 2011

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Reasons for Sentence

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1.  The defendant, Mr Frederick David Penney, faces three charges. Charge 1 is attempted robbery, contrary to section 10 of the Theft Ordinance, Chapter 210, and section 159G of the Crimes Ordinance, Chapter 200. Charge 2 is assaulting a police officer, contrary to section 36(b) of the Offences Against the Person Ordinance, Chapter 212. Charge 3 is breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Chapter 115. The particulars of offences of these three charges are set out in the charge sheet, and the court is not going to repeat them here now.

2.  The defendant pleads guilty to Charges 1 and 3, and Charge 2 is left on court file and not to be activated without the leave of this court or the Court of Appeal.

Facts Admitted

3.  At about 2000 hours on 16 January 2011, the victim parked his car at the parking space No. 2003, Rumsey Street Multi-storey Car Park at No. 2 Rumsey Street, Central, Hong Kong.  He put $30,000 cash into a bag and then alighted from the vehicle.  The defendant wearing a surgical mask pointed a knife of a wine opener at the victim’s neck and declared robbery, demanding the victim to hand over the bag in which he had just put in the $30,000.  The defendant pushed the victim back into the car, and the victim struggled with the defendant and shouted for help. 

4.  An off-duty police officer happened to be nearby and he declared his police identity to the defendant.  The defendant threw a bag at the police officer and started to run.  The police officer gave chase and the defendant threw a mobile telephone at him, hitting the officer’s lip.  The defendant escaped.

5.  Medical examination revealed that the victim suffered from tenderness over right chest wall, bruising over left wrist and abrasion on face, both wrists and hands.  The police officer suffered from tenderness on upper lip and abrasion on both palms and right knee.  

6.  The police arrested the defendant outside his residence in Lamma Island at about 1820 hours on 17 January 2011. He denied the offence under caution.  The fingerprint of the defendant’s left ring finger was found on the outside of the offside front door window of the victim’s vehicle.

7.  The defendant was found to be an American who was only allowed to stay in Hong Kong until 27 December 2010.

Criminal Record

8.  The defendant has a clear criminal record.

Psychological and Psychiatric Reports

9.  The court obtains a psychological and a psychiatric report of the defendant before sentencing. According to the psychological report, the defendant was born in the United States and is the second among six siblings.  His father was a fisherman who often got drunk.  His parents divorced when he was 16 years old.  The defendant was active in sport while at school and completed university education.  He had the experience of being sexually assaulted while being an altar boy.  He married twice and had two children in each marriage. 

10.  He came to live in Hong Kong with his girlfriend.  The defendant is industrious at work but problematic in both social and intimate relationship.  He became emotionally vulnerable when having relationship problem with his girlfriend.  He separated from his girlfriend and moved out on his own on the day of the offence.  He got drunk in Central and missed the ferry back to Lamma Island where he lived.  He then committed the offence of robbery.

11.  The psychologist is of the conclusion that the defendant displays no sign of cognitive impairment or gross psychopathology but was likely experiencing adjustment disorder with depressed mood prior to committing the offences.  His difficulty in adjusting to the relationship problem with his girlfriend and his drinking problem contributed to the offence. 

12.  The psychologist finds that the defendant does not appear to be sincere in depicting the offence details and that his remorsefulness is very shallow.  The psychologist opines that the defendant’s readiness for change is fair, and programmes targeting his drinking problem is(are?) beneficial to him.

13.  The psychiatrist reports that the defendant spoke coherently and relevantly with no psychotic symptoms or cognitive deficit elicited.  He is of the view that the defendant could be suffering from adjustment problems due to the issues in his relationship with his girlfriend and he had misused alcohol to cope with his stress.  The psychiatrist is of the view that the defendant may benefit from psychological counselling at an outpatient clinic.

Mitigation

14.  The defendant was born in Boston, USA in 1962.  The solicitor representing the defendant sets out in mitigation the background of the defendant which is similar to that in the psychologist’s report.  The defendant studied management marketing and computer science in the university.  The defence solicitor submits to court the various certificates of the defendant’s academic achievements.

15.  The defendant came to Hong Kong in 2006 to set up his own business, the Max Wave Development Limited which he ran with his girlfriend.  The business was a success.  The defence solicitor submits to court information about this company.

16.  The defence solicitor says in mitigation that even the defendant himself cannot explain why he committed the robbery and points out that the depression of the defendant and his relationship problem with his girlfriend contributed to the offence.  The defence solicitor tenders to court a letter of apology written by the defendant addressed to the victim.  The defence solicitor points out that the defendant apologises sincerely to the victim.

17.  The defence solicitor also submits to court mitigation letters written by the defendant’s mother, stepfather and a friend.  They all express good opinion of the defendant, saying that he is an honest and trustworthy person.  They are of the view that the offence is totally out of the character of the defendant. 

18.  Defence solicitor points out that according to the diagnosis of the psychologist and the psychiatrist, the defendant suffers from adjustment disorder which is a mental disease.  The defence solicitor submits that such a disease may have an effect on the criminal culpability of the defendant and is a factor to be considered by the court in deciding whether a deterrent sentence is to be imposed.  The defence solicitor tenders to court articles giving detailed information about this disease.  He urges the court to obtain further psychologist and psychiatrist reports on the defendant or summons the psychologist and psychiatrist to give evidence in court on how the disease relates to the offence committed by the defendant, which is refused by the court.  

19.  The defence solicitor cites Mo Kwong Sang v R [1981] HKLR 610 and HKSAR v Ng Oi Cheung [2009] 5 HKC 431 in mitigation, and the court will deal with them later.

20.  In respect of the offence of breach of condition of stay, the defence solicitor submits that the usual sentence in magistrates’ court is one of a suspended sentence, depending on the duration of the overstaying.  He reminds the court that in the present case, the duration of the defendant’s overstay is one of about six weeks.

Sentence

21.  Robbery is a very serious offence carrying a maximum sentence of life imprisonment.  Of course, such a sentence is reserved for the most serious type of such offence. According to Mo Kwong Sang v R, a case which the defence solicitor cites in mitigation, the appropriate sentence in an ordinary case of armed robbery where the defendant carried a knife or other dangerous weapon which he displayed to the victim should be 5 years’ imprisonment. 

22.  In the present case, the defendant pointed the knife of a wine opener at the neck of the victim.  It would not be difficult to imagine the degree of fear the victim was put under because cutting the neck with a knife could cause fatal injuries.  The use of the knife by the defendant in such a manner is no doubt a factor the court has to consider in sentencing.

23.  The other case cited by the defence solicitor is HKSAR v Ng Oi Cheung.  In this case, the appellant held a piece of broken glass in his gloved hand about a foot away from the cashier of a convenience store and asked for money.  The cashier said no and shouted for help.  The appellant tried to leave when an off-duty police officer went into the store in response to the cashier’s shout for help.  The defendant was arrested.  Suicidal notes were found in the plastic bag carried by the defendant.  The defendant admitted that he wrote the suicidal notes and then discovered he had no money to buy charcoal to commit the suicide, and at that moment he decided to embark on the offence.  The appellant was diagnosed by a psychologist to be severely depressed at the time of offence to the extent that his ability to think and his judgment became impaired by his poor mental state.  The psychiatrist also found the appellant suffering from recurrent depressive disorder. 

24.  The Court of Appeal came to the conclusion that the appellant committed the offence in a highly depressed state, having set his mind on ending his life.  The Court of Appeal substituted the offence of 3 years 2 months’ imprisonment imposed by the District Court with an order of probation for 3 years.

25.  The circumstances of the defendant in the present case differ substantially from those in Ng Oi Cheung.  Both the psychologist and psychiatrist in the present case come to the conclusion that the defendant is likely or could have been suffering from adjustment disorder with depressed mood.  The choices of the word “likely” or “could have been” demonstrate that the two medical personnel are not so sure about the mental condition of the defendant.

26.  They are, however, both of the view that the defendant displays no sign of cognitive impairment. The psychologist points out that the defendant has no difficulty to differentiate right from wrong.  He even points out that the remorsefulness of the defendant is very shallow.  He is of the view that programmes aimed at tackling the defendant’s problematic drinking is beneficial to him.  He is obviously of the view that it was the drinking habit of the defendant that needed to be treated.

27.  The psychiatrist is of the view that the defendant may benefit from psychological counselling.  But again it is clear from the report of the psychiatrist that the condition of the defendant was mostly induced by his alcoholic consumption.

28.  Judging from the reports of the psychologist and the psychiatrist, the court is of no doubt that the defendant knew very well what he was doing at the time of robbery, and the adjustment disorder of the defendant was not to the extent as to impair his ability to think and to make judgment.  There is also no indication from the reports that the defendant has a suicidal tendency.  All these distinguish the present case from Ng Oi Cheung which was decided very much on its own facts.  It is also for this reason that the court does not accept the submission of the defence solicitor to obtain further psychological and psychiatric reports on the defendant or to summons the psychologist or psychiatrist to come to give evidence in court.

29.  The defence solicitor submits that no planning was involved in the present case.  The court has much reservation about this submission.  The defendant took along a wine opener with knife to the car park where the offence took place.  He was wearing a surgical mask at the time when he committed the offence.  It also happened that the victim had just put $30,000 into a bag, and then the defendant demanded the victim to surrender the bag during the robbery.  All this showed at least some degree of planning of the robbery.

30.  Having considered the whole circumstances of the case, the court is of the view that although the present case is one of attempted robbery, it falls within the type of robbery involving the use of knife envisaged in Mo Kwong Sang.  The court, however, takes into account that the knife used by the defendant was part of a wine opener with a blade of only 2 inches. 

31.  After considering all these factors, the court adopts a starting point of 4 years’ imprisonment for the charge of attempted robbery.  In a case of this nature, the court is of the view that the previous good character of the defendant does not constitute a valid mitigation, but the court is prepared to give some discount to the defendant because of his mental condition.  The defendant is of course also entitled to the credit of his guilty plea.  The court therefore sentences the defendant to 2 years 5 months’ imprisonment for Charge 1.

32.  For the offence of breach of condition of stay, having taken into consideration all the circumstances of the case, including the guilty plea of the defendant, the court imposes a sentence of 1-month imprisonment.

33.  Having considered the nature of the case and the totality principle, the court orders the sentences of the two offences to run consecutively.  The defendant is to go to gaol for 2 years 6 months.