HKSAR v. SHUM HON YIN DOMINIC

DCCC 1050/2024

[2025] HKDC 1581

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1050 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own pleas and admission of three charges, namely:

Charge 1, common assault;

Charge 2, criminal damage; and

Charge 3, assault with intention to rob.

All three offences were committed in the evening of 18 May 2024 in Laguna City, Kwun Tong, and all within a matter of an hour or so.

The Facts

2.  At around 20:40 on 18 May 2024, Mr Johnson Wan, a 65-year-old gentleman who was working as a security guard, was on duty inside a security booth at Phase 3 Car Park of Laguna City.  He heard someone kicking a tin can outside, and when he opened the door of the booth, he saw the defendant walking past. The defendant then swore at Mr Wan, saying words to the effect of “What the fuck were you looking at”, then picked up a traffic cone and threw it at Mr Wan, although fortunately he missed.

3.  About 25 minutes later, in the same evening, Mr Wan heard someone banging the door and window of the security booth.  He then saw the defendant trying to break into the booth.

4.  After the defendant left, Mr Wan came out and saw a broken broom and a broken dustpan, which were originally placed under the fire hoses at the subject car park.  In addition, Mr Wan also saw one of the CCTV cameras there broken. The case was then reported to the police.

5.  When the police carried out the investigation, they took from the management of Laguna City the CCTV footages which showed exactly what I have described earlier.

6.  At about 21:45 in the same evening, Ms Chen Xiaoyan, who was a worker at a restaurant nearby, was smoking in the alley near King Yip Street and No 90 Hung To Road, Kwun Tong.  As she was having her smoke there, she saw the defendant approaching her with a wooden stick in his hand.  And when the defendant went up to her, he asked her to give him all her money.  In response, Ms Chen told the defendant that she was impecunious. 

7.  The defendant then pointed the wooden stick at Ms Chen and asked her again to give him all her money.  They were then less than a metre away from each other and, obviously, Ms Chen became very scared and walked backward slowly.  The defendant kept following Ms Chen and repeating his demand for money whilst holding the wooden stick at her all the time.  When Ms Chen shouted for help, the defendant used the wooden stick to hit her left forearm, right upper arm, her back, and right rib, causing abrasions to these areas.

8.  And, having subjected her to such violence, the defendant then said to Ms Chen words to the effect that if she dared, she could report the matter to the police, and that is what Ms Chen did upon her return back to her workplace.

9.  Ms Chen was later sent by the police to the hospital.  Upon examination by a doctor, she was found to have suffered tenderness and abrasion, on her left and right upper limbs and chest wall.

10.  The defendant was arrested at his residence on 19 May 2024.  When cautioned, the defendant admitted that he had damaged the CCTV of the car park because he was not in a good mood at the time.  In relation to the attack on Ms Chen, the defendant said that he did it because he did not like people smoking, which was what Ms Chen was doing at the time.

11.  Further admissions were made by the defendant when he was interviewed again later in the course of the police investigation.  For the present purpose, I do not think it is necessary for us to go into them.

The Defendant’s Background

12.  The defendant is a young man who was locally born and bred.  He comes from a good family.  His parents apparently had high hopes of him.  Shortly after he was born, he was found to have speech delay, and later emotional management problems.  When he was around 9 or 10 years old, he was formally diagnosed to have Asperger’s Syndrome.  His IQ was however found to be within the normal range and he did not seem to have difficulty in pursuing his education.  He is now 25 years old.  He was 23 at the time of the offence.

13.  Having completed his secondary education, he enrolled with the Polytechnic University for an associate degree course.  But having spent 1.5 years there, he dropped out without completing the course.

14.  The defendant then started working, doing different kinds of work, but apparently never able to hold on to one for any substantial period of time.  This I shall come back to later.

Mitigation

15.  Defence counsel Mr Leung has said all he could in mitigation for the defendant.  There are basically three main factors which are being put forward: one, the defendant’s timely pleas; two, the defendant’s good family background and of course the fact that he has never been in trouble with the law before; three, the defendant’s behaviour at the material time being largely, if not entirely, the result of the autistic spectrum disorder which he has been suffering from for years.

16.  In support of the latter, a report from Dr Peter Yu, a psychiatrist in private practice, has been put before me.  I have studied that report with great care.  According to Dr Yu, he was told by the defendant that in the evening of the 18 May 2024, a misunderstanding arose between him and his parents.  The defendant was under the impression that they were blaming him for delaying dinner and he stormed out of home in anger.  At the time, he was also very frustrated due to unemployment.

17.  The defendant admitted to Dr Yu that he had done wrong, that he had committed the criminal damage out of anger, and the assault partly because of his annoyance with the victim smoking.  He said he asked the victim, that is Ms Chen, for money to buy food as he was hungry.

18.  In relation to the diagnosis of Autistic Spectrum Disorder, Dr Yu said in his report that the disorder is characterised by persistent deficits in social communication and social interaction across multiple contexts, including deficits in social reciprocity, non-verbal communicative behaviours used for social interaction, and skills in developing and maintaining relationships.

19.  Dr Yu said that through previous training, the defendant seemed to have acquired skills necessary to cope with the disorder.  However, such success as the defendant may have in school setting (where he was sheltered and protected by the environment and the teaching staffs) was lost after he left school. People became less understanding and expected him to be a socially and emotionally mature adult.

20.  The reality, in Dr Yu’s opinion, however, is that the defendant’s social and emotional development is equivalent only to that of an 8 to 12 years old child, or to put it in a different way, a Primary 3 to Primary 6 student.

21.  Taking into account all that, Dr Yu was of the view that the offences the defendant had committed were largely, if not entirely, attributable to the defendant’s mental disorder.  He was of the opinion that regular psychiatric assessments would be needed in a public setting and the defendant would benefit from social skills training as well.

22.  Lastly, Dr Yu believed that the likelihood of the defendant recommitting is slim as he would benefit from the training and psychiatric treatment recommended.

23.  Now, in order to have a fuller picture of the situation and of course also to assist me to decide on how best to deal with the defendant, I have called for two psychiatric reports and one psychologist report.  I have been told by Mr Leung for the defendant that the contents of these have been fully explained to the defendant.

24.  As one can see from the psychiatric reports prepared by Dr Lui, a consultant psychiatrist at Castle Peak Hospital, and Dr Chow, who is a visiting psychiatrist at Siu Lam Psychiatric Centre, whilst confirming that the defendant is suffering from autistic spectrum disorder, Dr Chow was apparently given a slightly different account of the course of events by the defendant. According to paragraph 9 of Dr Chow’s report, this is what he is given by the defendant to understand:

“Regarding assault and criminal damage, he describes being instructed by his mother to purchase family takeout dinner despite having already showered and changed into pyjamas - a ritual he resisted breaking. He eventually complied but became irritable. At Laguna City Phase 3 carpark, he kicked a rubbish bin in frustration. When Mr Wan inquired about his behaviour, the defendant responded with expletives and threw a traffic cone toward them, claiming intention to indicate desire to be left alone rather than cause harm. After returning home with food, he revisited the carpark to confront security but found the booth locked. Impulsively, he struck the booth window with a long-handled dustpan, breaking the handle. He denied hitting the CCTV. He left carrying a handle fragment.

For assault with intent to rob, he reports wandering aimlessly with the broken handle when tobacco smoke distress prompted him to notice Ms Chen who was smoking. He claims that his initial plan was to request for her to stop smoking, he suddenly decided he was hungry and moneyless. He then decided that he should threaten her to give him money. After she refused and told the defendant that she did not have money, he struck her 3-4 times with the handle whilst she protected herself with her arms. He threatened against police contact before she returned to her workplace restaurant.”

25.  As I have indicated earlier, it is regrettable that both Dr Chow and Dr Lui have not addressed the issue of whether, in their opinion, the offences were indeed largely or maybe even entirely attributable to the defendant’s mental disorder.  However, some assistance could be obtained from the report of Ms Sarina Lam, a clinical psychologist with the CSD.

26.  In Ms Lam’s report, it was stated, under the heading “Clinical Impression”, that the defendant’s clinical presentation is consistent with those commonly observed in individuals with Autism Spectrum Disorder, that he has exhibited long-standing difficulties in emotional regulation and stress tolerance, and that the index offences appear to be precipitated by acute emotional dysregulation in the context of perceived long‑standing repudiation by his mother.

27.  But unlike Dr Yu, Ms Lam takes the view that the risk of recidivism on the defendant’s part is not low.  And no doubt because of that, it is recommended by Ms Lam that the defendant should receive ASD-specific psychological interventions focusing on emotional regulation strategies, social skills training, and stress management.

28.  On the basis of what I have set out hitherto, I am prepared to accept that at the material time there is a good likelihood that the defendant’s behaviour was largely, although not exclusively or entirely, contributed to by the mental problem he has had.  And for that reason, I have considerable sympathy for the defendant and his parents.

29.  However, one must not lose sight of the fact that the court also owes the public a duty to protect and to deter.  Members of the public, Ms Chen certainly being one of them, are entitled to expect the court to protect them from intrusions of the kind she had been subjected to.  And that, of course, is one of the reasons why stiff sentences have regularly been passed on defendants who committed robberies or offences of the like kind, which include Assault with intent to rob.

30.  It is in my view also important to remember that courts in the territory must not allow people of predisposition similar to the defendant’s to be under the impression that they would be let go lightly for serious offences they had committed simply because they had a mental problem of a like kind.  Therefore, in spite of the sympathy I have for the defendant, it is clear that immediate custodial sentence is inevitable in the circumstances.

Sentence

31.  Now, having referred to the cases cited by Mr Leung, and taking what I hope is a balanced and fair view of the situation before me, this is what I am going to do.

32.  For Charge 1, I shall take a starting point of 6 weeks’ imprisonment; for Charge 2, a fine of $3,000; and for Charge 3, a starting point of 36 months’ imprisonment.

33.  For the defendant’s guilty pleas, which were indicated at the earliest opportunity, and his pre-existing mental problem, which I have gone into in some detail, I will give the defendant a total of 50% discount.  Because of that, the sentence for Charge 1 will be reduced to one of 3 weeks; the sentence for Charge 2 to a fine of $1,500; and the sentence for Charge 3 to a term of 18 months’ imprisonment.

34.  Now, as the offences were largely interconnected and all committed within a period of one to two hours, I shall order the prison terms for Charge 1 and 3 to be served wholly concurrently.

35.  I shall also accede to Mr Leung’s request by making a recommendation to the CSD that the defendant be given appropriate psychiatric treatment as the psychiatrist in the department shall deem fit.

36.  In relation to the fine, I have been given by Mr Leung to understand that it can be paid out from the defendant’s bail money.  Accordingly I shall also so direct.