HKSAR v. CHEUNG CHI HUNG

DCCC 99/2021

[2021] HKDC 1505

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 99 OF 2021

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REASONS FOR SENTENCE

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1.  Defendant is convicted on his own plea and agreement to amended Summary of Facts to a charge of attempted robbery, contrary to section 10 of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200.

Facts

2.  The victim (PW1)  was the owner of a snack shop located at Shop B, Ground Floor, Yan Wo Building, 70 Java Road, North Point. 

3.  On 26 November 2020 at around 0300 hours, PW2, elder sister of PW1, came to visit PW1 and they chatted outside the snack shop.

4.  At around 0442 hours, PW1 was standing on the pavement of Java Road facing the snack shop. A man, who wore a black face mask, a black/red jacket and a pair of shorts, suddenly approached PW1 from behind and strangled PW1 with his left arm.  The man then put a pair of scissors (red handle, about 15 cm long)  on PW1’s throat and requested for money.  Feeling scared, PW1 pushed the man away.  She then ran back to the snack shop and grabbed a knife for protection.  The man then fled along Java Road. 

5.  PW1 suffered no monetary loss but she got a cut on the back of her left hand (about 2 cm)  during the struggle.  The case was reported to police. 

6.  Relevant CCTV footages in the vicinity captured that at the material times a man (similar body build as the defendant)  walked along Java Road at 0441 hours.  He wore a black jacket with red stripes, a pair of shorts, a pair of black sneakers and a black face mask.  He robbed PW1 outside the snack shop at 0442 hours and he fled along Java Road at 0443 hours. 

7.  Later, police officers mounted an ambush operation outside Coronet Court, North Point.  At around 0102 hours on 27 November 2020, the defendant was seen walking out from the Coronet Court.  He was then arrested and, under caution at the scene, he admitted committing the offence as he had no money for food. 

8.  House search was conducted and a black jacket with red stripes, a grey long-sleeved tee and a pair of scissors were seized. 

9.  In the subsequent interviews, under caution, the defendant stated, inter alia, that he was jobless due to the pandemic and that he committed the robbery because he was running out of money.  He also said that on 26 November 2020 at around 0400 hours, he was in his residence in Coronet Court.  He felt hungry but he only had $10.  He therefore went downstairs and brought a pair of scissors with him.  He was looking for opportunities to rob when he walked along Java Road and, when he reached the snack shop, he saw two women.  He then approached one of them and strangled her from behind.  He also put a pair of scissors on her throat and requested for money.  The woman pushed him away and ran back to the shop.  He felt scared and fled, and then he returned home after the robbery. The pair of scissors seized at his home was the one he used to rob the victim, and the clothes and the black face mask seized at his home were those he wore at the material times.

Criminal Record

10.  Defendant had criminal records since 1997.  He has 22 previous convictions, of which 3 relating to dishonesty and 5 relating to violence. 

11.  In the year 2021, he was sent to prison for 20 months on 11 January 2021 for conspiracy to dealing with property known or believed to represent proceeds of an indictable offence and on 2 August 2021 he was sent to 12 months’ imprisonment for assisting unauthorised entrant to remain in Hong Kong and living on the earnings of prostitution of others. 

Mitigation

12.  Defence counsel asked this court to refer to paragraph 1 of the psychiatric report by Dr Sze Sarah for background of this defendant.  The same says that the defendant is a 40-year-old divorced man, living and working in a brothel. He was born in Hong Kong and he never met his biological parents.  He was brought up in Po Leung Kuk as an orphan until he was adopted at the age of 5. 

13.  He studied up to Form 2 with poor academic performance and conduct problems, eventually expelled from school.  He got into trouble at the age of 15 and his adopted parents then severed their relationship with him.  He was thereafter sent to residential care home under Social Welfare Department. 

14.  He later transgressed the law again and, breached probation order, he was sent to Training Centre.  Upon release, he was placed in a hostel and he then began working as delivery worker and waiter.  He got married which lasted for less than 2 years and he did not have any children. 

15.  Because of his involvement with the triad, he was offered a job as a brothel keeper and he has been living and working there since then.  He reported that he has been financially very tight because of the COVID-19 and he borrowed money from friends and the amount of debt went up to several ten thousand dollars. 

16.  Defence counsel said defendant has a long history of psychiatric problem due to drug abuse, that he started hearing non-existing voices since the year 2016 and has been admitted to psychiatric institution for more than 8 times. It was said that, before this present offence, defendant heard voices asking him to repay his debt otherwise he would be killed.  The voices also instructed the defendant to rob and he was too scared not to follow.  It was also said the defendant knew what he was doing at the time of the offence, namely robbing a woman was wrong and illegal. 

17.  Defence counsel also submitted that the defendant pleaded guilty at the earliest opportunity and that the victim suffered no monetary loss.  The only injury was some minor injury being a cut on her hand and there was no permanent injury.  It was also said that the defendant committed the offence due to his psychiatric problem. 

18.  Defence counsel also referred this court to two cases, ie the case of HKSAR v Chiu Yu To[1] and the case of HKSAR v Lam Chung San[2].  He said, in the present case, defendant has a long history of psychotic symptoms. As the 2 psychiatrists had confirmed that the defendant was actually suffering from paranoid schizophrenia and they had recommended inpatient psychiatric treatment, defence counsel urged this court to adopt the recommendation of the psychiatrists. 

Discussion

19.  On conviction upon indictment, a person guilty of the present offence is liable for imprisonment for life.

20.  Attempted robbery is a very serious offence.  In this case, defendant in the early hours strangled a woman with his left arm and then put a pair of scissors (about 15 cm long)  on her throat and requested for money.  This posed serious threat to the woman’s life and she must be very frightened at the time.  As a result of the struggle, the woman suffered a cut on the back of her left arm (about 2 cm in length).

21.  The usual appropriate sentencing starting point for armed robbery with knife displayed is 5 years’ imprisonment.[3] In this case, the defendant, apart from displaying the scissors, has actually put the scissors against the throat of the woman, which aggravates the culpability as this is a life-threatening act. 

22.  Further, it is noted that when the defendant committed the present offence, he has actually jumped bail for the case of ESCC 1931/2020, which further aggravates his culpability, for which a sentencing starting point should be further enhanced by 6 months to 5 years and 6 months’ imprisonment. 

23.  Nevertheless, defence counsel submitted to the court the reason that the defendant committed the offence was because he heard voices asking him to rob and he dared not follow although he knew it was wrong.  The issue is: should the court accept this contention? 

24.  Firstly, this court noted that when the defendant was apprehended by police at about 0102 hours on 27 November 2020, at scene and under caution, defendant told the police that he robbed because he has no money.  He never mentioned about hearing voices. 

25.  The same was post-recorded in the record of interview from 0213 hours to 0418 hours on 27 November 2021.  During this interview, defendant reiterated again the reason for his commission of the offence (answer 3).  He spelt out the details of the commission of the offence, including his mind work just before he committed the offence (answer 4), giving the same reason that he was hungry and he had only $10.  In answer to question 5, he related in detail the happenings surrounding the commission of the offence.  He was able to remember all these details, which conformed with what was caught on CCTV footage. 

26.  Defendant had further participated the next day, ie 28 November 2020, in 2 video recorded interviews.  In the first video recorded interview commencing from 0956 hours on 28 November 2020 ending at 1011 hours on the same day, defendant in reply to question 8 to 10 gave the same reason for commission of the offence as well as details surrounding the commission of the offence.  He again reiterated the same reason in answer to question 27 and asked for a chance. 

27.  In all these statement-taking or video recorded interviews, defendant was allowed to make supplement or amendments to any of the statements and yet, on all these occasions, he did not mention about hearing voices which led to his commission of the offence. 

28.  On what is before the court, it was only when he was interviewed by the psychiatrist in June 2021, ie 6-odd months later, that defendant for the first time stated the new reason, ie hearing of voices. 

29.  This court also had requested the court files involving the defendant since 2017, ie ESCC 1931/2020, WKCC 3564/2017 and TMCC 1272/2021, and had the benefit of studying the nature of the charges and the circumstances under which the offences were committed by the defendant in order to know more about the defendant’s character and background. 

30.  In the case of ESCC 1931/2020, defendant was charged with conspiracy to deal with property known or believed to represent proceeds of an indictable offence.  He was granted bail but he failed to appear on 24 November 2020. Bail was revoked.  He later pleaded guilty to the charge and was sentenced to 20 months’ imprisonment. 

31.  The commission of this offence occurred between 1 January 2020 and 10 February 2020, where the defendant admitted personally retrieving money from his own bank account, in which money defrauded from victims intending to buy face masks, between 4 February 2020 and 8 February 2020 on 5 occasions involving total sum of $790,000. 

32.  In the case of WKCC 3564/2017, defendant pleaded guilty to a charge of assault occasioning actual bodily harm occurring on 30 June 2017.  He admitted that he committed the same out of anger. 

33.  In the case of TMCC 1272/2021, defendant pleaded guilty to a charge of living on the earnings of prostitution of others occurring between 22 August 2020 and 30 October 2020 and another charge of assisting unauthorised entrant to Hong Kong occurring between 7 October 2020 and 30 October 2020, for which he was sent to 15 months’ imprisonment.  The agreed Brief Facts of the case show that defendant was able to perform the acts disclosed during this period of time in question. 

34.  This court therefore, after reading the materials, indicated to defence counsel that this court has reservation to accept the contention by defence counsel that defendant heeded to the instructions by voices he heard and that he was too scared not to follow as being reason for commission of the present offence. 

35.  This court said further that it is prepared to consider the submission more fully by way of a Newton hearing and time was given to defence counsel for taking instructions in this regard.  After taking instructions, defence counsel returned and said that defendant was not prepared to proceed with a Newton hearing. 

36.  It was further submitted by defence counsel that defendant explained that he did not know he could tell the police that he had been hearing voices instructing him to rob.  It was also submitted that although at the time of the offence defendant knew it was wrong and illegal for him to rob, his judgment was somehow affected because of the mental illness. 

37.  Before sentence, this court has carefully considered the 2 psychiatric reports from Dr Jane So and Dr Sze Sarah, both dated 7 June 2021.  These reports say that the defendant had history of polysubstance abuse since his twenties, abusing different types of dangerous drugs, and that he was known to the mental health service since 2016 when he was admitted to the psychiatric unit of Queen Mary Hospital for hearing non-existent voices and referential ideas after using methamphetamine.  He was diagnosed to have stimulant-induced psychosis at the time. 

38.  In October 2016, upon hospital admission, he was diagnosed to suffer from schizophrenia when he presented with narcotic symptoms in absence of substance abuse. 

39.  Defendant himself reported to the psychiatrists that he was admitted to hospital in November 2020 for hearing non-existent voices.  He denied taking any dangerous drug prior to that admission.  He was later discharged to police custody under oral anti-psychotic medication and defendant received psychiatric follow-up at hospital after discharge. 

40.  It was said by the psychiatrists that when the defendant was last seen on 27 April 2021, he was noted to still have occasional auditory hallucinations and was continued on Haloperidol, an oral anti-psychotic medication. 

41.  Defendant told the psychiatrists that, before the commission of the present offence, defendant had used methamphetamine and drank lots of beer.  He claimed that he then heard a voice telling him to rob someone and then he followed what the voice told him, as he was scared not to follow. 

42.  Both psychiatrists say that defendant had limited insight into his own mental illness and they say defendant requires inpatient psychiatric treatment and recommend hospital order of 3 to 4 months at Siu Lam Psychiatric Centre. Dr Sze says defendant is actively psychotic and the risk of unpredictable violent ideas is high, as he would follow instructions of his auditory hallucination. 

43.  This court notes however that although the psychiatrists set out in the reports “defendant’s account of index offence”, they did not say that they opined that at the material time, ie time of the offence, defendant had acted under the influence of psychotic symptoms. 

44.  This court accepts that the defendant is suffering from schizophrenia or likely paranoid schizophrenia, but the fact that he was suffering from this illness does not mean that all the things he did was somehow due to this mental illness.  In fact, defence counsel submitted that, at the time of offence, the defendant knew what he did was wrong and illegal.  Unlike the cited case of HKSAR v Chiu Yu To, where Dr Ng, one of the psychiatrists in that case, says that the defendant was “harbouring active psychotic symptoms” at the time of the offence, and Dr Choi, another psychiatrist, says that the defendant in that case was “under the influence of psychotic symptoms”, which had distressed him and influenced defendant’s ability to cope. 

45.  In that case, the defendant, again convicted of a robbery charge, presented his own driving licence as evidence of his identity as well as his address to the receptionist in the clinic.  He did not take the money given to him but just remained in the clinic for a considerable time until the police arrived.  These are, as recognised by the Court of Appeal, unusual features of the robbery and that they take great significance against the findings by the psychiatrists. 

46.  In the other cited case, HKSAR v Lam Chung San, where the defendant was convicted of attempted robbery, defendant there produced a piece of paper saying “robbery” to the bank teller.  He then tried to retrieve this piece of paper but without success.  Instead of fleeing from the scene, he then proceeded to the second floor of the bank and sat on the sofa, helping himself to a cigarette.  The court there made a hospital order. 

47.  The demeanour of the defendant in that case was unusual.  Instead of quickly fleeing from the scene, he stayed there for a cigarette.  The same obviously suggested that the defendant was under the influence of his own psychiatric illness, which in that case was chronic schizophrenia. 

48.  Contrasted with the facts in our present case, the defendant here immediately fled the scene and returned home upon struggle by the victim. There is nothing from his demeanour to suggest that he was under the influence of schizophrenia at the time, and, coupled with his many admissions to police regarding the reasons for commission of the offence.  This court considers that there is nothing really to prevent the defendant telling the police the truth, if in fact he committed the offence because he heard voices.  He failed to do so on the very many occasions, instead he repeated what he said, ie he robbed because he had no money, and despite all the chances that he had. 

49.  This court refuses to accept the contention by the defence counsel that the reason for the defendant’s commission of the offence was because he heeded to the voices asking him to rob. 

50.  In the case of HKSAR v Chan Sau Lan Becky[4], where the defendant convicted of robbery had well-documented mental conditions, the court said nevertheless that no sentence other than a significant and immediate sentence of imprisonment was appropriate. 

51.  In the Court of Appeal case of Secretary for Justice v Yan Shen[5], the Court of Appeal reiterated the warning sounded in the case of R v Yaldiz [1998] 2 VR 376 at 383 that:

“It is not appropriate to simply fasten on to the words ‘recognised psychiatric disorder’ and then, without reference to the symptoms and consequences of that disorder, to contend that purposes of general deterrence have no part to play in the sentencing process. Whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused.”

52.  In paragraph 43 of the judgment, the Court of Appeal continued:-

“And in the same case, the correct approach was suggested by Batt JA, at p 381, to be as follows:

‘General deterrence is not eliminated but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap.’”

53.  In sentencing a defendant with psychiatric illness, one should focus on the defendant’s state of mind at the time of commission of the offence and the extent to which the psychiatric conditions might have impaired his ability to resolve dispute or problem in his life.  It is noted that the defendant here has previous convictions involving dishonesty and violence but not robbery. 

54.  Defendant here is able to exercise judgment as at the time he knew what he did was wrong.  This court however also noted that defendant was in a state of destitution at the time of commission of the offence.  Although this is not an excuse but, as an act of mercy, this is in some way a mitigating factor. 

55.  Given the circumstances of the offence and the background of the defendant, and bearing in mind the defendant’s previous convictions, records of dishonesty and violence, and considering the mitigation submission by defence counsel as well as the mitigation letter written by the defendant himself, this court considers that the appropriate sentencing starting point in this case would be 54 months’ imprisonment. 

56.  Defendant has pleaded guilty and is therefore entitled to full one-third sentencing discount, which arrives at 36 months’ imprisonment.  Accordingly, defendant is sentenced to 36 months’ imprisonment for this case. 

57.  This court acknowledges the need for the defendant to receive inpatient psychiatric treatment so that, on his release, he would not pose as a serious threat to the community.  This need would be conveyed to the Correctional Services Department to make appropriate arrangements. 

58.  This court noted that the defendant is now serving sentence imposed in case number ESCC 1931/2020 for offences of totally different nature and that the defendant committed the offence more than 9 months prior to the present offence.  Defendant is also serving sentence imposed in case number TMCC 1272/2021 again for offences of a totally different nature committed between August to October 2020. 

59.  This court does not find it appropriate to order any sentence imposed in this case to run concurrent to the sentence in the other 2 cases.  Therefore the sentence imposed in the present case is to run totally consecutive to the sentence in the other 2 cases.