HKSAR v. LI TAK MING

CACC 369/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 369 OF 2010

(ON APPEAL FROM DCCC 438/2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Beeson J:

1.  On 16 December 2011 we dismissed the applicant’s application for leave to appeal against conviction and sentence, advising that we would hand down our reasons at a later date. Our reasons follow.

2.  The applicant was convicted after trial before Deputy District Judge Chanrai on one count of Robbery and was sentenced to 7 years’ imprisonment.  He appealed against conviction and sentence.  On appeal we heard the applicant who was acting in person; examined the plank used as a weapon in the robbery; perused the Antecedents Statement prepared by the police; ordered a psychiatric report and adjourned the appeal until the report was available. We thereafter also ordered the preparation of a psychologist’s report.

Background

3.  The victim of the robbery while shopping bumped into the applicant accidentally and a dispute ensued.  When, eventually, the victim walked away, unbeknownst to him the applicant followed him.  The victim and the applicant reached a spot outside a food shop and at this point the applicant took a wooden plank from the ground and hit the victim two or three times on the head from behind.  The victim fell to the ground, his head bleeding profusely.

4.  The applicant searched the victim as he lay on the ground.  He found a wallet in the victim’s shirt pocket and succeeded in removing it.  A passerby, PW2, saw the applicant take the wallet; PW3, another passerby, reported to the police.

5.  PW2 followed the applicant to a nearby building. He saw the applicant enter the building so he waited outside for the police.  On arrival the police entered the building with PW2 and when they reached the second floor saw the applicant coming downstairs from the floor above.  PW2 identified the applicant who was arrested by the police and cautioned.

6.  The applicant told PW5, the arresting officer, that he had bashed the victim’s head with a plank and committed robbery.  He said the bashing was in retaliation for the dispute.  Police searched the applicant and found $250 in his jacket pocket; he admitted that the money was from the victim’s wallet, the wallet having been thrown away.

7.  In a Video Interview the applicant admitted that he had robbed the victim and hit his head with a wooden plank he had found on the ground.  He claimed he had taken methadone and a tablet of ‘blue spirit’ (Triazolam), shortly before he committed the robbery.

8.  A medical officer at the Yan Chai Hospital confirmed that the victim suffered tenderness of the head and laceration at the occipital region.

Trial

9.  At trial, the applicant, who was legally represented, denied having made any admission at the scene and challenged the admissibility of the Video Interview.

10.  The applicant gave evidence on the special issue that he could not recall what happened as within 3 to 5 seconds of taking the drugs, he did not have a clear mind and could not think of anything.

11.  By the time of the Video Interview, he had about 60% clarity of mind.  He had no recollection about events at the scene; he had signed many documents, he was confused and he could not remember if anyone explained to him the contents of the Notice to Persons in Custody.  He did remember being taken for the Video Interview, but claimed that before it began he was asked to co-operate, told that it was impossible for him not to admit guilt and that he had to sign.

12.  On the general issue, the applicant adopted his evidence on the special issue.  He maintained that he was not clear if he had hit anyone with a wooden plank, but he did not intend to, nor did he recall snatching the wallet.

13.  The judge was sure that the admissions had been made by the applicant as the police said that they had been and that there was no impropriety by PW5, or any other police officer, towards the accused.  She was satisfied that the Video Interview was voluntary.

14.  The judge, while accepting that the applicant may have taken dangerous drugs at or around the time of the incident did not believe that his speech or behaviour as reported by PW2 and PW4 revealed a confused state or an inability to understand, or respond to, questions.

15.  The judge was satisfied that PW2 had identified the applicant accurately and accepted his evidence about the applicant taking the wallet from the victim.  Further, blood stains on the applicant’s clothing and shoes could have come from the victim; that was established by forensic examination.

Grounds of Appeal

16.  On appeal, the applicant relied, more or less, on the matters that had been advanced at trial.  In his grounds of appeal the applicant relied on:

(1)    The absence of his DNA on the wooden plank and a tissue used to wipe blood off.

(2)    The victim’s failure to identify him at an ID parade.

(3)    The unlikelihood of a robber robbing somebody without speaking, as he was alleged to have done.

(4)    His not being fully conscious when he was arrested.

(5)    His claim that he was under the influence of drugs, and that the Video Interview was taken while he was under that influence.

17.  The judge dealt with those matters in her Reasons For Verdict.  We have considered those reasons and the evidence carefully and can find no basis for disturbing the judge’s finding of guilt.  Accordingly, we dismissed the application in relation to the conviction.

18.  The applicant filed an application for leave to appeal against sentence.  He said that because of some external impact he was in a daze and came into bodily contact with the victim.  He thought he might have been attacked at that time resulting in the incident, that the uniformed officers proved that he was injured and that he had pleaded not guilty in the lower court as a lawyer told him there might be room for leniency.

19.  According to the applicant the eyewitness saw him grapple with the victim for three minutes before snatching the wallet in the presence of many onlookers.

20.  At the police station three witnesses together with uniformed and plainclothes officers all confirmed that he had not said anything.

21.  The applicant asked the court to analyse the case from another perspective i.e. would a real robber act this way?

22.  He also expressed the hope that he could be given a little sympathy on law.

23.  In passing sentence the judge noted that the applicant was aged 62 years; that he had only primary education and had been employed as a casual cement worker.  His criminal record confirmed that he did take dangerous drugs.

24.  The applicant’s criminal record started in 1962. His most recent offence was in 2008 for theft, when he was sentenced to 2 months’ imprisonment.  He had convictions for robbery in 1974, 1988 and 2 in 1995 for which he received substantial sentences.

25.  Other convictions were for offences of dishonesty, minor violence and, starting in 1983, there was a large number of drug convictions indicating long-term addiction.  The last drug conviction was in 2004.

26.  There was no mitigation of any weight advanced before the judge whose maximum sentencing jurisdiction in the District Court was 7 years.

27.  The judge referred to the principles of sentencing in R v Mo Kwong Sang (1981) HKLR 610 where the court stated:

“… we realise that the adoption of the suggested level of sentence will mean that in some cases the appropriate sentence will be above the maximum which the district court is permitted by law to impose.

Where a district court would be disposed, had it the power to do so, to impose a sentence exceeding seven years, the correct course would be for the judge to indicate what sentence he would have awarded if he had been able to do so and then to impose one of them seven years imprisonment.”

28.  The judge noted that the applicant had picked up the plank from the vicinity and used it to hit the victim more than once on the back of his skull.  She commented that it was only by the greatest of good fortune that PW1 was not more seriously injured; a view we shared.

29.  The victim was sent to the Accident and Emergency Department of Yan Chai Hospital and then to the Department of Neurosurgery at the Princess Margaret Hospital.  He had a 6 cm lacerated wound over his left occipital scalp which had to be sutured and he was discharged from hospital the following day.

30.  The photographs of the lacerated wound show a large gash which is quite deep and has been sutured.  We called for the production of the plank which is a piece of wood about 37½ ins long x 6 ins wide with jagged ends, weighing about 1.5 kg.

31.  Although an improvised weapon the plank was a very effective one, blows from which rendered the victim unconscious for a time and use of which, despite the absence of premeditation, brings this offence into the category of a head-bashing robbery.

32.  The judge in recognition of that aspect had considered Secretary for Justice v Ma Ping Wah [2000] 2 HKC 566 which suggested that the sentence in such cases should not be less than 8 years’ imprisonment.

33.  Counsel for the applicant at trial submitted that this was not a usual case of head-bashing as it happened at 11:30 am, in a busy area near a bus stop and the injuries sustained were not the most serious.

34.  However the gravamen of a head-bashing robbery is the delivery of a blow or blows to the head with a weapon capable of causing injury to the brain to facilitate the robbery – other matters are entirely incidental.

35.  Mr Hui, who appeared for the respondent, helpfully referred us to a number of cases in which head-bashing robbers had been sentenced.  Those cases recognized the gravity of such offences and it was clear that 8 years has been taken as the minimum starting point for sentence.

36.  Here a substantial piece of wooden planking was used to deliver at least two blows to the back of the victim’s head.  This caused loss of consciousness and profuse bleeding – blood being found on the plank, the ground, on the applicant’s clothing and shoes as well as on the clothing of the applicant.

37.  The judge, bearing in mind the guidelines, the gravity of the offence and the applicant’s lengthy criminal record, considered 8 years the proper sentence, but noting her maximum sentencing jurisdiction, she imposed a sentence of 7 years.

38.  The judge did not seek background reports prior to sentence, but, on appeal, given the circumstances of the offence, the applicant’s age, our relatively brief observation of him and the fact that he had a long-term drug history, we thought it prudent to obtain reports to rule out any mental illness or psychosis.

39.  Dr Amy C.Y. Lau, Visiting Psychiatrist at Siu Lam Psychiatric Centre, examined the applicant and produced a report dated 18 August 2011.  She had read the Brief Facts but had no other source of information apart from the applicant.

40.  Dr Lau considered that the applicant understood the charge and his legal position.  He claimed to her he had injected 1 tablet of “Dormicum” on the day of the offence and could not remember what happened until he was at the police station.

41.  She found the applicant had limited insight and was self righteous about a lot of reckless behaviour, such as stealing during childhood, substance abuse, or law breaking.  No psychotic symptoms and no suicidal or aggressive ideas were elicited.

42.  Dr Lau’s opinion was that the applicant was a heroin and “Dormicum” abuser and that he had a Dissocial Personality Disorder. He is not suffering from other formal psychiatric illness and psychiatric care is not warranted.  Dr Liu had no specific recommendations to make.

43.  A further report was prepared by a Clinical Psychologist, Dr Tiffany M.Y. Lee Ph D. (Clin Psy.) of the Correctional Services Department.  The report set out in detail the applicant’s family, educational and employment background.  An intelligence test for screening purposes was administered and the psychologist opined that the applicant should have no difficulty in differentiating right and wrong and was able to understand the cause and consequence of his own actions [para 8 refers].

44.  Dr Lee concluded in para. 9:

“9. Considering the information elicited from the clinical interview, LI was impressed to be a mentally composed person. He was clear-minded with no apparent psychological problems detected during the present interview. He was a drug abuser who tended to detach from the society and relied on drugs to avoid stress and boredom in life. Concerning the index offence, he showed remorse about inflicting harm to the victim and attributed the offence to lost of self-control under the influence of drug. However, he tended to minimize and justify his previous offences with minimal introspection. His self-awareness was deemed as inadequate. Given his number of previous convictions, short interval of re-offending since last release, unstable employment history, and insufficient family support, it was impressed that his recidivism rate of similar offences was NOT low. As he is not diagnosed to be suffering from any psychological problems, psychological service is deem to be not necessary at present. Rehabilitation on substance abuse as well as community support is recommended to help him stay abstinent from illicit drugs upon community reintegration.”

45.  The combined effect of the psychiatric and psychologist’s reports showed that the applicant was voluntarily abusing substances which may well have affected his memory of events around the time of the offence.  However, in the absence of any formal mental illness, his voluntary substance abuse neither excuses his behaviour nor does it operate as any form of mitigation.

46.  If, as he told the psychiatrist, he has been using heroin since 1980 and had been using Dormicum for about 2 months before the incident, he had ample time in which to consider that memory lapses caused by his substance abuse might be a trigger for criminal behaviour.  He cannot rely on such lapses as mitigation of his offence.

47.  Whilst in the circumstances a starting point of 7 years might be considered on the high side, it cannot be said to be manifestly excessive, nor is it wrong in principle.

48.  The applicant’s application was therefore dismissed.