HKSAR v. CHAN CHI YUEN, STEVEN

DCCC 762/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 762 OF 2013

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of false imprisonment, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance, Chapter 221. The maximum sentence is 7 years imprisonment.

2.  In summary Madam Chan and the defendant were involved in a relationship lasting just over one year between February 2012 and April of this year.  At around 2:30 p.m. on the 21 May this year Madam Chan left home for work.  As she opened the door the defendant suddenly used a white towel to cover her nose and mouth.  Madam Chan felt a strong smell from the towel and became dizzy whereupon the defendant pushed Madam Chan into her home and tied her up with plastic straps and covered her mouth with adhesive tape.  

3.  The defendant then took a chopper from the kitchen and pointed this at Madam Chan telling her to be quiet.  The defendant said he had brought some charcoal with him and wanted to commit suicide and die in front of Madam Chan.  The defendant went outside the flat but could not find the charcoal and told Madam Chan he wanted to die together with her, saying it would be quick and easy and it would only take two slices. 

4.  At about 6:00 p.m. the defendant untied Madam Chan when she complained of feeling pain.  Madam Chan did not however try to leave at this time because she was too afraid she could not run fast enough.  About two hours later the defendant ordered a pizza.  Madam Chan pretending to pay took the opportunity to escape and ran into the lift when the pizza delivery man arrived.  The defendant followed and struggled with Madam Chan.  When the lift reached the 26th floor Madam Chan managed to run out of the lift but was caught by the defendant on the 24th floor.  The defendant pointed the chopper at Madam Chan forcing her to return home where he again tied her up. 

5.  The pizza delivery worker seeing what happened pressed the alarm in the lift.  This alerted the security guard of the building who, on seeing the struggle in the lift from the CCTV, called the police.  About 8:30 p.m. the police entered into negotiations with the defendant.  Soon after the police persuaded the defendant to untie Madam Chan.  Madam Chan then rested in her bedroom and discreetly locked the door whilst negotiations continued between the police and the defendant.

6.  After about six hours of negotiations the Fire Services Department arrived and together with police officers broke into the flat.  At the same time the defendant broke into the bedroom and grabbed hold of Madam Chan’s neck with one hand and waved a chopper with the other hand.  The police eventually subdued the defendant after using pepper spray.  Fortunately Madam Chan was notseriously injured sustaining bruising on her arms, wrists, right knee and right shin and an abrasion at her upper right chest.  Madam Chan was sent to hospital for treatment and was discharged the same day.

7.  Under caution and subsequent video interview the defendant said he went to the flat to commit suicide in front of Madam Chan taking with him the plastic straps; a bottle of solvent and some charcoal.  The defendant only said he wanted to die together with Madam Chan to see if she still cared about him and did not intend to hurt her.

8.  Before passing sentence I called for psychiatric, psychological and background reports on the defendant.  The court having been informed that the Social Welfare had followed up Madam Chan’s case I also called for a Social Welfare Officer’s report as to the impact of the offence on Madam Chan.  I have carefully considered the content of these reports.

9.  I take into account everything said on behalf of the defendant by Mr Chan, including the circumstances the relationship with Madam Chan came to an end and the highly emotionalstate the defendant was acting under when he went to see Madam Chan for what he expected to be one last time before he took his own life, which circumstances are also detailed in the reports, in particular the psychiatric report.

10.  The psychiatrist Dr Liu is of the opinion the defendant is suffering from Moderate Depressive Episode for which he has been treated with anti-depressants.  At the time of writing her first report Dr Liu stated that the defendant’s mental condition had gradually improved and that there was no further suicidal idea at present. The defendant on the other hand told the probation officer he had not yet got over his suicidal plan (see paragraphs 14 & 15 of the background report). 

11.  In the early hours of the 30 September, the day the defendant was to be sentenced, he again attempted suicide.  As a consequence the defendant was unable to attend court for sentence.  I therefore called for a medical report and an updated psychiatric report.  The medical report details the defendant’s attendance at hospital since his remand in custody. 

12.  Dr Liu confirms her diagnosis that the defendant is suffering from Moderate Depressive Episode and is of the opinion the defendant’s latest attempt at suicide is related to the acute stress due to the legal proceedings.  After further counselling and treatment the defendant has been able to calm down and his mood has generally improved.  The defendant has promised not to harm himself again.  The defendant not having suffered from any psychotic symptom and with the improvement of his mental condition upon further counselling a Hospital Order is not deemed necessary in his case.

13.  The clinical psychologist Mr Woo reports that intelligence screening suggests the defendant has normal intellectual functioning.     Mr Woo says the defendant is likely to be impulsive and short-sighted and therefore acts hastily and pays no heed to the consequences of his actions.  The defendant’s strong need for attention and affection tends to invoke manipulative and unpredictably contrary behaviours.  Mr Woo suspects the defendant suffers from adjustment disorder and personality problem that merit professional attention.  Mr Woo is of the opinion the risk of re-offending is not low unless the defendant can manage his mood and impulse properly. 

14.  I take into account the defendant has not been before the court since 2004 when he was sentenced to community service for causing wasteful employment of police time and fined for careless driving.  I take into account by pleading guilty the defendant shows remorse for his actions and most importantly Madam Chan has not had to give evidence thereby recalling what must have been a very harrowing incident. The clinical psychologist says the defendant appeared to be very remorseful during the interviews and the probation officer says the defendant appeared overwhelmed by guilt.

15.  There are no guidelines in Hong Kong in respect of kidnapping or false imprisonment, each case to be decided on its own facts and circumstances.  As was said in Secretary for Justice v Yiu Man Chun [2011] 3 HKC 125, a case referred to the court by Mr Chan,

“The type of offence with which we are dealing can occur in such a wide variety of circumstances that it will often, though not always, be difficult to come across a previous decision that exactly or even roughly matches the facts of a case under consideration.”

This is clearly shown by the differing facts in the four cases from the United Kingdom cited by Mr Chan in his supplemental written submission.

16.  I have carefully considered these decisions together with the aggravating and mitigating factors in kidnapping and false imprisonment cases set out in the sentencing manual published by the Crown Prosecution Service in the United Kingdom.  These factors were referred to me in a similar kidnapping case I heard earlier this year.  At the end of the section of the manual reference is made to recent cases (some of which have been referred to by Mr Chan) arising out of emotional relationship which are to be found in section B3-4.3D of Current Sentencing Practice, which cases I have read.

17.  The offence is a very serious one.  Madam Chan was twice tied up in her own home, the first time for over three hours; threatened with a chopper and told she would die together with the defendant.  Whilst accepting the defendant did not intend to hurt Madam Chan by threatening her that they were to die together must have added to what was already a terrifying and harrowing incident.  As can be seen from the social welfare officer’s report although Madam Chan has returned to work she has experienced nightmares after the incident and has taken tranquilizers to help her emotional distress. 

18.  Further Madam Chan worries about her safety after the release of the defendant who might take revenge on her or cause disturbance to her in the future.  In this regard I note the reference in the background report to the stalking and harassment of Madam Chan prior to the day of the offence which resulted in a report to the police being made and referral to the Family Service Centre for counselling service.

19.  Conscious always of the need for individual justice having taken into account all the circumstances of the offence including:

(i) the defendant detained Madam Chan against her will in her own home for about twelve hours during which time he tied her up twice and used a chopper on three occasions to threaten Madam Chan saying at one stage they would die together;

(ii) Madam Chan suffers nightmares and still feels scared;

(iii) the false imprisonment arose out of an emotional relationship;

(iv) although the defendant was acting under a highly emotional statethe offence was planned the defendant taking with him a bottle of solvent which he used on a towel to overcome Madam Chan and plastic ties which he used to tie up Madam Chan;

(v) the defendant has no previous convictions for violence however as already noted prior to the incident the police were called due to the stalking and harassment of Madam Chan; and

(vi) by pleading guilty Madam Chan has not had to give evidence;

I am satisfied the proper starting point after trial is one of 3 years and 6 months imprisonment. Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years and 4 months imprisonment.