THE ATTORNEY GENERAL v. YAN CHUN FONG

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J U D G M E N T

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Sir Derek Cons, V.P.:

1. This is the judgment of us all.

2. On 30th November 1991, at about midday .Yan Chun Fong ("the defendant") entered the Sun Hai Jewellery and Goldsmith Company which is a shop in Pei Ho Street, Kowloon. He told the manager of the shop he was interested in buying certain jewellery. All these articles were placed before him on the counter and he expressed satisfaction with them. They were a gold and diamond ring priced at HK$33,400, a diamond ring priced at HK$14,400 and a diamond bracelet priced at HK$11,000. The manager put the jewellery in separate boxes and issued receipts for each article.

3. The defendant then drew from an envelope what appeared to the manager to be a pistol, although he exposed only a small part of it. He snatched the three boxes and their sale receipts and ran out o?the door.

4. Within minutes he was arrested by a police officer on patrol after a short pursuit and when the shop staff had shouted "robbery".

5. In the course of the pursuit the defendant discarded the pistol, which turned out to be a toy pistol, and two plastic bags. These were recovered by a member of the shop staff and each of the bags was seen to contain one of the rings in a box. The bracelet valued at HK$11,000 was never recovered.

6. These are the relevant facts, as far as these proceedings are concerned, put before Duffy, J., on 22nd--April this year when the defendant pleaded guilty to one count of robbery contrary to s. 10 of the Theft Ordinance, Cap. 210, and one count of possession of a firearm at the time of committing the robbery contrary to s. 12(2) of the Firearms and Ammunition Ordinance, Cap. 238.

7. One month later, clearly moved by what he referred to as "exceptional factors in mitigation, including the psychiatric reports and the phychologist's reports, as well as the probation reports" the judge sentenced the defendant to two years' imprisonment suspended for three years, together with an order for probation which included a condition that the defendant should seek immediate psychiatric help.

8. Surprisingly the judge did not allocate the sentence or the probation order to either count as such, but in some way we do not understand or sanction purported "to deal with it in its entirety".

9. Section 109B(1) of the Criminal Procedure Ordinance, Cap. 221, provides that a court which passes a sentence of imprisonment, other than for what is referred as an "excepted offence", may suspend the effect of that sentence in circumstances which are set out in the subsection. The excepted offences are to be found in the Third Schedule to the Ordinance. Amongst them are the two offences to which the defendant pleaded guilty. Moreover s. 1098(2) expressly provides that a court which suspends a sentence may not at the same time make a probation order, the effect of which, if lawfully made, must be explained to the offender: s. 3(4) Probation Ordinance, Cap. 298.

10. Unfortunately the provisions of s. 109B were overlooked by the judge himself, were not sufficiently drawn to his attention by counsel then appearing for the Crown and were not appreciated at the time by counsel appearing for the defence, who had expressly invited the judge to take the course that he did. Counsel concedes today, however, that he cannot resist the present application of the Attorney General brought with the leave of this Court under s. 81A of the Criminal Procedure Ordinance.

11. The defendant, who is now aged 38, trained in China as a doctor and worked for some time in a hospital in Tung Koon. In 1973 he married, his wife giving birht a due course to two daughters there. Wishing to father, if possible, a son and heir he came to Hong Kong in August 1980, his wish being finally granted after the birth of three further daughters.

12. The defendant's medical qualifications not being recognised in Hong Kong he undertook at first various jobs in the construction industry and elsewhere before setting up his own practice as a herbalist doctor in what is now his home village in a very remote part of the New Territories, accessible even today only on foot or by bicycle. From the profits of this practice he was able to maintain his family and provide for the education of. his children, although the financial pressures must have been considerable.

13. He has been undoubtedly a very good father, spending a good deal of his time helping his children with their school work and enabling them, the eldest daughter in particular, to achieve excellent academic and other results. They wrote a very articulate and moving letter to the judge below when at last they were made aware of the real trouble their father was in. For a long time he had managed to conceal it from them with the excuse that it referred to a lack of licence of his herbalist business.

14. Disaster struck in August 1991. He was involved in an accident with a container lorry and confined to hospital for some ten days. Unfortunately he suffered psychological as well as physical injury. Even before coming to Hong Kong he had been inclined to rely upon anti-depressant drugs to overcome anxiety and tension. Now the injury and scarring, particularly on his face, caused him to lose complete confidence in himself as a capable herbalist to treat his patients and eventually he had to give up his practice. Not able, in view of his physical injuries, to undertake manual work he was unable to find any employment at all. He soon used up all his savings, being then forced to borrow from others. He was reluctant to apply for public assistance lest knowledge of this should reflect upon his children.

15. Further misery was added to his lot when last year medical fees had to be found to meet the cost of an operation on the mother to remove kidney stones. In the depth of his despair he must have conceived robbery as a possible solution to all his cares, although with calmer consideration he would surely have realised that given his restricted mobility the chances of its being successfully executed would be remote.

16. We may pause here to remark that on publication in the local press of Duffy, J.'s decision the family received many calls of sympathy, offers of help and donations from at least one local newspaper and other sources. Within the last few days counsel has received a further anonymous donation on the family's behalf. We trust the order we intend to make will not discourage the concern thus expressed by the community for the defendant's family.

17. Mr. Cotsen for the defendant has strongly urged that in the circumstances probation would be the most appropriate order for this Court to make. That could be done under s. 3 of the. Probation of Offenders ordinance if this Court is of the opinion that having regard to the circumstances, including the nature of the offence and the character of the offender, it is expedient to do so.

18. At first glance it might be thought that the reference to the character of the offender and to what we have earlier said in this respect would make an order of this kind particularly appropriate but we doubt, with all respect to Mr. Cotsen's suggestion to the contrary, whether the defendant would particularly benefit from the advice and guidance of a probation officer, or would have done so in April this year. What was needed from his point of view was psychiatric treatment which he has since received and we understand has been successful subject to its continuation. More appropriate to achieve what Mr. Cotsen suggests would seem to be s. 107 of the Criminal Procedure Ordinance which provides:

"(1) where any person has been convicted on indictment of any offence punishable with imprisonment, and the court is of opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or any other than a nominal punishment, the court may, in lieu of imposing a sentence of imprisonment, make an order discharging the offender conditionally on his entering into a recognizance, with or without sureties, to be of good behaviour and to appear for sentence when called on at any time during such period, not exceeding 3 years, as may be specified in the order."

19. However, in either case, the court is required to consider whether the order would be expedient and in so doing it must have regard not only' to the interests of the offender and his family, but to those of the community at large. Armed robbery is a grave offence and the courts cannot completely abdicate their responsibility to protect the public from its effects as best they can, in particular those sections of the public, such as the staff of jewellery shops, who are particularly vulnerable. In R. v. Ng Ka Ling [1989] 1 HKLR 64 at 67 attention was drawn to the attendant risks even where the pistol used in the robbery is, as in the present instance, only an imitation. With the interests of the community in mind we have to say that, whatever mitigation there might be, we cannot at the moment imagine any circumstances in which robbery of a jewellery shop with a simulated firearm would not inevitably attract an immediate custodial sentence. We also have in mind the need to deter others, even those with happy family backgrounds and successful children, who might, in severely straitened circumstances, be tempted to resort to crime to solve their difficulties.

20. For these reasons we are unable to accede to Mr. Cotsen's plea. In our view, having regard to all the circumstances as they now stand, a total sentence of two years' imprisonment is appropriate. We therefore allow the application of the Attorney General, set aside the sentence and order imposed by the judge below and in their place substitute a sentence of eighteen months on the first count o? robbery and 6 months on the second count for possession of a firearm at the time of committing robbery, the sentences to run consecutively.