HKSAR v. CHAN SAU LAN, BECKY

HCCC 53/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 53 OF 2016

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Ms Chan, you have pleaded guilty to one count of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210.

On 30 August 2015, you went to Golden Bauhinia (Hong Kong) Jewellery Limited, in Temple Street, and you asked to see the vaults. Mr Lo tells the court that you tried to do this previously. You spoke, at that time, with a 63-year-old gentleman and you asked for the return of $8,500 which you say represented the money you had paid for a ring which was not as valuable, you say, as they had suggested it was, and when you did so, you took out an imitation firearm. He immediately placed the jewellery that he was handling back into the showcase and you asked him for a ring from the showcase, but he refused.

You then replaced the imitation firearm that you had been brandishing back into your handbag and you tried to break into the showcase which he, obviously, tried to stop you from doing. Because of that, you took out the imitation firearm once again and you shot him at close range in the left arm. You then stole two diamond rings and ran away, but not before trying to shoot him again. Fortunately, you missed him this time.

Mr Lo, on your behalf, in both his extensive written submissions and his oral submission today, urges the court to take into consideration your extensive history of mental illness when coming to a decision about your blameworthiness and also the application of the deterrent element of sentencing policy for robbery. The latter, the deterrent element, you cannot avoid because it applies to society at large. It is a message to everybody who is capable of understanding it that we will not condone the use of weapons in any circumstances, nor the use of imitation weapons and there is a very good reason for this.

As was said by Yeung JA in Secretary for Justice v Lee Chun Ho Jeff [2009] 6 HKC 471, it must be recognised that robbery - and I add in there, Ms Chan, for that matter any offence - with the use of firearms is particularly hideous because, firstly, they cause much greater fear to the victim and, secondly, and perhaps more importantly, the use of firearms by robbers will increase the chance of law enforcement officers resorting to their own, thus exposing the public to serious risk of death or personal injury. The fact that the firearm is an imitation firearm makes little difference because, on the spur of the moment, neither the victim nor the law enforcement officer may appreciate that it is an imitation firearm.

That was true in this case because the gentleman you shot would not have known that the firearm you were carrying held pellets and not bullets. Even so, you could have done him serious harm, especially if you had shot him in the face; you could have blinded him. And it may, as I have said to Mr Lo, have been what I am referring to as an imitation firearm but, in reality, it was a weapon. You loaded it with pellets and you discharged those pellets causing injury to the victim.

You took that firearm with you to the shop and by your actions, it appears that you intended to use it and you did use it, not once but twice, after you had clearly, it must have been obvious to you, injured the poor shopkeeper who had done you no harm. Ms Chan, you are a danger to society.

Mr Lo submits that you are less blameworthy than someone who has had no mental illness. But that, of course, presupposes that you were suffering from a mental illness at the time that you committed this offence. As Mr Lo rightly points out in his written submissions, the court would look at the nature and the gravity of your symptoms and the effect that it had upon you at the time that you committed the offence because there should, for it to be taken into consideration, be a connection between your condition and the offending.

To that end, I asked for an updated psychiatric report and I received a report from Dr Dorothy Tang which was dated 6 January of this year, but it follows much the same view and content as Dr Amy Yu of 9 September 2015. Both suggest that whilst you have had and continue to have psychiatric problems, those issues have been addressed with medication which you say you take on a regular basis, and as such, they say you are in a stable condition where you understand the nature of your actions and you are therefore answerable for them.

The Court of Appeal in The Queen v Yu Tai Wing [1995] 1 HKC 837, approved a 10-year starting point for a single charge of robbery where an opportunist robber embarks upon a robbery alone, with an imitation firearm, in a public place and inflicts no harm upon the victim. But you inflicted harm and having done so, tried to do so again. By chance, you missed.

In HKSAR v Pou Lai Sing [2010] 3 HKLRD 233, the court reiterated that robberies of banks, jewellery shops and other establishments in possession of large amounts of cash or valuable items were very serious offences and must be deterred.

For such a robbery with an imitation firearm, the normal starting point was between 12 to 15 years after trial. Taking into account the point that was made in Lee Chun Ho Jeff above, that possession of an imitation firearm itself might lead to law enforcement officers reacting by using their own firepower and thereby placing the general public in danger.

I do not know if you went to the shop that day in order to steal jewellery but, on your account, you clearly intended to use the weapon to force a refund which is very much the same, Ms Chan, as you had an unlawful intent and you intended to use force to obtain what you wanted. When you did not achieve that, you had the wherewithal to decide to take what you thought you were owed in the form of two diamond rings.

Mr Lo has also brought the case of HKSAR v Ng Oi Cheung, CACC 68/2009, to the attention of the court. This was a case where a man was driven to try to commit suicide and he sought to rob a Circle-K convenience store in order to obtain money to buy charcoal to kill himself and he used a piece of glass to do so. He received a sentence of 3 years and 2 months in the District Court which was reduced to a probation order by the Court of Appeal.

But the facts, Ms Chan, of that case are so very different from yours. Mr Ng was a danger to himself first and to the public second. No attempt at all was made by him to use the glass, he simply held it in his hand, and he was suffering from severe depression at the time that he committed the offence and had previously been a timid and unassuming individual who had, in the interim, been remanded in Siu Lam and had received appropriate medication, allowing the court to take a very unusual step of releasing him to a halfway house.

I have read the psychiatric reports on file as I have said. You have had a very difficult life. But you have had help and you have had the medication for it. You were not, at the time of the offence, and are not currently, actively schizophrenic as you are in remission and you were, and you are therefore now, fully responsible for the actions that you carried out and for which you have no excuse. You do not require a psychiatric disposal to safeguard yourself or others. You were in a halfway house accommodation at the time of the offence in August 2015, and you had been functioning well.

Ms Chan, if you have a dispute with a fellow citizen, then you resolve that dispute amicably or by resort to the legal system which is actually here to help you in such circumstances. You do not take the law into your own hands and you certainly do not attack those who you believe have treated you badly.

You complain that your motivation was the deception that was practised upon you, but you have many previous convictions for dishonesty yourself and one previous conviction for having an offensive weapon. You are now 55 years of age and, Ms Chan, you should know better.

I believe the appropriate starting point in all the circumstances of this case is one of 12 years’ imprisonment because you were responsible for your actions. You took the imitation firearm to the shop to threaten the owner and when you did not get your money back, you used it and caused an obvious injury, stole two rings, and then fired again in order to cause more injury.

The only thing that stops me giving you a harsher sentence is that this was not a premediated robbery of a wholly unassociated commercial premises simply for personal gain. You clearly had some misguided view of how to air your grievance.

Of course, Ms Chan, you will receive a one-third discount for your plea of guilty and you will go to prison for 8 years.