HKSAR v. CHAN SAU HAR, BERRY

 DCCC78/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 78 OF 2010

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Reasons for Sentence

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1.  The defendant has pleaded not guilty and found guilty after trial for one count of aggravated burglary, contrary to section 12(1) and (3) of the Theft Ordinance, Cap. 210.

2.  I found after trial that the defendant did enter PW1’s home as a trespasser, did attempt to inflict grievous bodily harm on PW1 and at that time had with her a weapon of offence, one knife. I do not intend to repeat the facts of the case; I gave full details in my verdict.

3.  This is indeed a very unusual case. This is not a situation where a dishonest person or a thief has entered premises with a knife to aggravate the offence, meaning to make it much more serious.

4.  The defendant is a young woman of 25 years old and previously had a clear record. PW1 was the defendant’s ex-boyfriend. The defendant was clearly not prepared to walk away from what can be described as a failed relationship. After the break-up she did incessantly contact PW1 but to no avail, so much so that PW1’s family changed the locks of the home.

5.  I did find after trial that the defendant did have the intention to inflict grievous bodily harm from her conduct and her words.

6.  On the same day as her arrest, she gave a record of interview to the police. She was calm during the course of this interview. It was interspersed with tears of a woman who was disappointed and heartbroken.

7.  It struck me when considering the evidence of the defence witness Dr Hui as odd from her record of interview, she did not exhibit signs of being emotionally unstable or mentally unstable. Dr Hui gave evidence that he diagnosed the defendant with schizophrenia in September 2009, three months before the offence. I have an up-to-date psychiatric report before me where another psychiatrist is not convinced that the defendant is suffering from schizophrenia at all.

8.  After conviction, I called for two psychiatrists’ reports. It is not necessary to repeat the contents of the reports. Clearly, neither doctor considered a hospital order necessary for her safety or wellbeing.

9.  Now, I have heard full mitigation today, and Mr Acton-Bond has tried his best to submit that this would be a case where a community service order or perhaps an order where supervision is required will suffice and add to the rehabilitation aspect of sentencing. With respect, I am not convinced by this submission.

10.  I find a term of imprisonment appropriate to reflect the facts of this offence and I will say why. Firstly, I am not convinced as has been suggested that at the time of the offence there was any sign the defendant was suffering from mental illness. I am not saying the defendant does not suffer from any mental illness of some definition, but I am saying that at that time I found she knew what she was doing when she brought the knife the evening before the offence, planned and executed a break-in, threatened PW1 and had an intention to hurt him.

11.  All psychiatrists, be it the defence witness and the two psychiatrists who have interviewed the defendant since conviction, say the defendant is suffering from some underlying emotional unstable personality. Dr Yuen goes as far as saying that she has an emotional personality of the borderline type and the defendant is prone to have intensive but unstable relationships with others and tries hard to avoid abandonment. And, clearly, this is how she felt here at the end of this relationship.

12.  The defendant may be emotionally unstable, but I still found her acting with intention and deliberation. She may have been driven by anger, jealousy or disappointment, but I am sure she knew what she was doing. To act so rashly as to break into PW1’s home and bedroom is serious and deserving of a term of imprisonment.

13.  Despite finding a term of imprisonment appropriate, I do not see the need to consider a lengthy term of imprisonment. The defendant previously has not been in any trouble and had a clear record. And her family are now aware and she is obviously now aware that when she is feeling emotionally unstable, she requires medical help which makes me believe that this will not be an offence that she will repeat.

14.  Thirdly, this is not a normal aggravated burglary, it is a crime of passion. There was once a good relationship between the defendant and PW1 that turned tumultuous and ended badly. Normally, lengthy terms of imprisonment are associated with aggravated burglary offences, but the situation here does not necessitate the normal sentence. I can treat the defendant with leniency. I did find that the defendant wanted to hurt PW1 but realistically it was unlikely to have gone further than an attempt to hurt him.

15.  After considering the facts and all the factors I have just referred to, the details and contents of the background report and the two psychiatrists' report, the defendant’s previous clear record, her strong family support and the mitigation I have heard - defendant, please stand up - I will impose a term of imprisonment of 15 months. Do you understand?

DEFENDANT: Yes.