HKSAR v. CHAN SAU LAN, BECKY

CACC 93/2017

[2018] HKCA 155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 93 OF 2017

(ON APPEAL FROM HCCC NO 53 OF 2016)

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REASONS FOR JUDGMENT

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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.  On 15 December 2016, the applicant pleaded guilty before Campbell-Moffat J (“the judge”) to a single count of robbery of a jewellery shop, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210. After hearing mitigation on 15 December 2016, the judge adjourned the hearing for an updated psychiatric report on the applicant to be prepared. On 30 March 2017, the applicant was sentenced to 8 years’ imprisonment. From that sentence, she now appeals.

2.  When the applicant first appeared before this Court in person on 12 January 2018, we noted certain unusual features in the papers, which prompted us to grant the applicant an appeal aid certificate pursuant to rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221D and to call for a further updated psychiatric report, in particular focusing on the applicant’s state of mind at the time of the commission of the offence and the extent to which her psychiatric condition might have affected or impaired her ability to resolve disputes or problems in her life; it being clear from the witness statements of the manager of the jewellery shop in question that there had been an on‑going dispute between the applicant and the jewellery shop for several months, arising out of the applicant’s belief that she had been cheated in respect of a gold ring she had commissioned the shop to make for her.  We also observed that the applicant had a bad criminal record for dishonesty going back to 1999.  Accordingly, we called for the court files in respect of these cases and adjourned the hearing until 8 March 2018.

3.  At the renewed hearing, having heard from counsel for the applicant and the respondent, and having read the new material before us, we granted the application for leave to appeal and allowed the appeal, substituting for the sentence of 8 years’ imprisonment a sentence of 5 years’ imprisonment.  We also indicated that we would give the reasons for our decision in due course.  These are our reasons.

Facts admitted by the applicant

4.  On 30 August 2015, at about 10:40 am, the applicant, wearing a facemask, appeared at the entrance of a jewellery shop known as Golden Bauhinia (HK) Jewellery Ltd, situated on the ground floor, 218 Temple Street, Yaumatei, Kowloon, just as the sales assistant (“PW2”) was preparing to open the shop.  She told PW2 that she wanted to see the boss and was accordingly invited into the shop.  Thereupon, the applicant asked another sales assistant who was also present (“PW1”) to return $8,500 to her and then pointed what was described as a “black gas pistol” at him, which she had taken from a recycle bag she was carrying.  PW1 immediately put the jewellery he was handling back into the display case.

5.  The applicant then demanded that PW1 give her a ring, which he refused to do.  Putting the pistol back into the recycle bag, the applicant attempted to open the display case herself.  When PW1 resisted this attempt, the applicant took out the pistol again and fired a shot at PW1’s left forearm.  PW1 was understandably frightened and moved away.

6.  The applicant then took the opportunity to remove two diamond rings from the display case before exiting the shop. However, before leaving the premises, she turned around and shot at PW1 again, although this time the shot missed its target.  The whole incident was caught on CCTV.

7.  By this time, PW2 had already called the police.  He also had the presence of mind to chase after the applicant as she boarded a bus in the street, and to ask the bus driver not to drive off.  However, the applicant alighted from the bus and made off in a taxi instead.

8.  PW1 subsequently recovered two plastic balls, which had been discharged from the pistol, from the floor of the shop.  PW2 was further able to provide the police with the name and telephone number of the applicant, whom he recognised as someone who had previously patronised the shop.  In a witness statement, dated 30 August 2015, attaching thereto the invoice of a ring purchased by the applicant on 5 March 2015 for HK$8,500, PW2 deposed that:

“I recognise [the applicant] as she bought a ring from the shop in early March this year. At that time, I received her and addressed her as Ms Chan. Later in mid‑April this year, she came to the shop to take the goods. After that she called to the shop every one to two weeks and said that she wanted to find the boss for compensation. Since she caused much annoyance and made many requests when buying and taking goods, I have a strong impression of her. In addition, I answered her calls on several occasions when she later called to the shop. Hence I also have a strong impression of her voice. Although [the applicant] wore a facemask today, I could still recognise her appearance and her voice. I am sure [she] is Ms Chan.”

9.  At about 5 pm on the same day, police officers duly located the applicant at a Rehabilitation Centre in Aberdeen, Hong Kong island, where she was residing at the time.

10.  Under caution, the applicant claimed, inter alia, that she had previously been cheated by the shop of HK$8,500; and that she had visited the shop with an imitation firearm in order to get her money back, which she was unable to do.  Accordingly, she snatched two rings instead.

11.  Upon a search, certain items were found inside the applicant’s purse:

(a) $800 in cash (which was subsequently confirmed to be the proceeds of one of the rings which she had pawned at a pawnshop in Tsuen Wan at about 11:30 am on 30 August 2015), anda ticket dated 30 August 2015 issued by the same pawnshop;

(b) an invoice dated 25 August 2015 from “Dentrinity Shop”, an imitation firearms and ammunition shop, situated at Kwong Wah Street, Mongkok, relating to her purchase of the pistol and a bottle of gas; and

(c) an EPS cardholder copy in respect of the purchase for the sum of HK$800.

12.  In a wardrobe of the room at the Rehabilitation Centre where the applicant was residing were found, inter alia, the pistol, a bottle of gas for the pistol and various clothes worn by her at the time of the offence.

13.  The pistol was subsequently analysed and found to be a “pressurized gas powered air gun designed to discharge 6 mm calibre plastic balls”.  Since it was capable of discharging 6 mm calibre plastic projectiles with a muzzle energy of less than 2 joules, it was classified as an ‘imitation firearm’, within the meaning of the Firearms and Ammunition Ordinance, Cap 238.

14.  On 30 August 2015, a video-recorded interview was conducted with the applicant, in the presence of a social worker, in which she claimed, inter alia, that she felt she had been cheated by the jewellery shop because the quality of the ring she had purchased was not what she expected.  She gave a detailed account of how she had purchased the pistol and loaded it with plastic balls; what had happened in the shop; how she had made her escape; and how and where she had then pawned the ring.  She maintained that, although she had taken two rings, she subsequently discovered that one had gone missing.  She stressed that she had robbed the shop only because she wanted to get her money back.

15.  The applicant also acknowledged that she knew it was illegal to use a pistol to rob.  However, she thought that the pistol was a toy gun and would not cause injury.

Mitigation

16.  The applicant was 55 years of age at the time of sentence and worked part‑time collecting newspapers.  She had married twice, her second marriage in 2005 being subsequently found to be bigamous[1].  She had been diagnosed as schizophrenic when first seen by a psychiatrist at Pamela Youde Nethersole Eastern Hospital in December 2010, although her mental problems had apparently surfaced much earlier.  She had had six court appearances and nine previous convictions, seven of which were for offences of dishonesty.

17.  At the hearing on 15 December 2016, the judge at her own behest called for an updated psychiatric report to be compiled detailing the applicant’s full medical history.  That report, dated 6 January 2017, noted that the applicant’s abnormal behaviour had begun some 15 years earlier, manifesting itself, inter alia, in muttering and giggling to herself, poor self‑care, aggressive behaviour at home and towards strangers and delusions of being poisoned and spied upon.  Nevertheless, her mental condition had become stable in recent years.  In‑patient psychiatric management was not recommended.

18.  It was submitted by counsel on the applicant’s behalf that the offence was very different from the usual type of robbery envisaged by the relevant guidelines.  Accordingly, a lesser sentence than might otherwise have been the indicated was called for.

Reasons for sentence

19.  In passing sentence, the judge noted that the use of firearms during a robbery, whether real or imitation, generated considerable fear in its victims and increased the danger of law enforcement officers resorting to their own firearms, thus placing members of the public at risk: see Secretary for Justice v Lee Chun Ho, Jeef [2009] 6 HKC 471.  Although an imitation firearm, it had been discharged twice at PW1, causing him to be put in considerable fear and generating minor injury, which might have been worse had the pistol been discharged in his face.  The judge considered that the facts did not justify any significant departure from the guidelines relating to imitation firearms and robberies of jewellery shops.

20.  Those guidelines stipulated that the use of an imitation firearm during the robbery of jewellery and goldsmith shops merited a starting point of between 12 and 15 years’ imprisonment: see HKSAR v Pau Lai Sing [2010] 3 HKLRD 233.  Whilst no distinction should be drawn between cases where genuine and imitation firearms were used but not discharged during a robbery of a jewellery or goldsmith shop, a single opportunist robber armed with an imitation firearm in a public place who inflicts no injury on his victim might warrant a starting point of 10 years’ imprisonment: see R v Yu Tai Wing [1995] 1 HKC 837.  Here, however, the judge considered that the firearm had been discharged twice in a jewellery shop and a minor injury caused to PW1’s left forearm, for which he had been treated at Kwong Wah Hospital.

21.  Describing the applicant as “a danger to society”, the judge noted from the psychiatric report before her that the applicant was on regular medication and knew the consequences of her actions.  Whilst the offence committed by the applicant was not “a premediated robbery of a wholly un‑associated commercial premises simply for personal gain”, it derived from “some misguided view of how to air [her] grievance”.  In the result, the judge adopted a starting point of 12 years’ imprisonment, which she discounted by one‑third for plea, resulting in a final sentence of 8 years’ imprisonment.

The applicant’s previous convictions

22.  As noted earlier, the applicant had seven previous convictions relating to dishonesty, all of which were cases in the jurisdiction of the magistrates’ courts.  They were as follows:

	Offence	Year	Case number	Sentence
1	Attempting to obtain property by deception	1999	SKC 3624/1998	4 months’ imprisonment (concurrent)
2	Using a false instrument
3	Using a false instrument	1999	SKC 782/1999	4 months’ imprisonment (2 months consecutive to SKC 3624/1998)
4	Attempted fraud	2008	KTCC 1455/2008	3 months’ imprisonment
5	Using a false instrument	2011	KCCC 413/2011	Hospital order for 3 months (concurrent)
6	Attempting to obtain property by deception
7	Attempting to obtain services by deception

23.  At the hearing on 12 January 2018, we requested the court files in the above seven cases so that the circumstances in which those offences were committed could be ascertained, and we could understand more about the applicant’s character and background.  In the event, only the Brief Facts and the related psychiatric reports in the case of KC 413/2011 could be retrieved, as well as the prosecution’s objections to bail in the High Court in respect of SKC 3624/1998 (to which the applicant eventually pleaded guilty). All other records relating to her previous convictions had apparently been destroyed.

24.  The facts of the two cases were revealing.  In KC 413/2011, the applicant had pleaded guilty to three offences: one of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200; one of attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210; and one of attempting to obtain services by deception, contrary to section 18A(1) of the Theft Ordinance.  In June 2010, she presented to a solicitors’ firm a forged identity card bearing another person’s name and claiming to be the legal owner of a particular flat.  She instructed solicitors to prepare a Power of Attorney appointing someone with the applicant’s name to be the authorised person to sell the flat.  She then returned to the solicitors’ firm two days later using her true identity, with her own genuine identity card, in order to collect the Power of Attorney in her favour.  The solicitor did not notice that the applicant was the same person on each day.

25.  Thereafter, the applicant went to a bank, attempting to withdraw money from the bank account of the legal owner of the flat, and to a property agency in order to sell the flat.  The magistrate called for two psychiatric reports, which revealed that the applicant was suffering from schizophrenia; and that she was allegedly acting on the instructions of a friend who could not be located.  In the result, the sentencing magistrate accepted the two psychiatrists’ recommendation and made a hospital order for 3 months.

26.  In SKC 3624/1998, the applicant had applied to the Bank of Communications, in November 1998, for two new cheque books, purporting to be the true current account holder of the account in question.  When she collected the cheque books in person and presented to the bank a forged authorisation letter, she was arrested by the police.  She immediately claimed that she had been instructed by a male to commit the offences.  Upon a subsequent search of her home, several bank statements and other correspondence belonging to a number of unknown persons were found in her possession.

Psychiatric report dated 26 January 2018

27.  In the further psychiatric report ordered by this Court, the attending psychiatrist (who happened to be the same as the one who had compiled the 6 January 2017 report called for by the judge) concluded that, while the applicant “had the ability to exercise judgment at the time of the offence and also at the current juncture, as she was fully aware that the act she committed was for ‘compensation of her loss’, and she understood that it was wrong to steal or injure others”, her chronic schizophrenia may have led to “cognitive deficits, including impairment in planning and problem solving”. As Ms Diana Cheung, who now appears for the applicant before us, noted, the applicant’s particular impairment in dealing with problems confronting her had not been mentioned in the report called for by the judge.

Grounds of appeal

28.  Ms Cheung argued that the applicant’s known psychiatric condition and her inability to deal properly or rationally with matters about which she felt aggrieved, as suggested in the latest psychiatric report of 26 January 2018, would justify a departure from what would otherwise be the normal sentence for the offence of robbery of a jewellery shop with an imitation firearm.  It was submitted that, given the highly unusual features of the case, the judge had given insufficient consideration to the applicant’s long-term history of mental illness.

Respondent’s submissions

29.  Ms Audrey Parwani, on behalf of the respondent, contended that the sentence imposed on the applicant could not be said to be manifestly excessive or wrong in principle.  She submitted that, since at the time of the offence the applicant’s mental state was said to be stable, she was able to exercise judgment and she clearly knew, on her own admission in interview, that what she was doing was wrong, the judge was correct not to give undue consideration to her mental condition for sentencing purposes.  She pointed out that in her previous offences, as with the present offence, the applicant had displayed obvious cunning, dishonesty and premeditation, which made one wonder to what extent her claim of a past grievance with the jewellery shop was in fact genuine.  She reminded the Court that considerable planning must have gone into the offence, as evidenced by the buying of the imitation firearm two days earlier, its loading with gas and plastic pellets and the donning of a mask, suggesting that it was not a “flight of fancy” by a disturbed woman.

Discussion

30.  This has not been an easy case to determine. The judge evidently took great care in approaching sentence, in calling for an updated psychiatric report, in her distillation of the relevant authorities and guidelines and in her reasons for coming to the decision she did.  That we have come to a different conclusion is not a criticism of her approach as much as a reflection of the difficulties which the case presents.  As the judge herself remarked, it was a “bizarre” set of facts.

31.  We must start by dealing with the aspersion which Ms Parwani has cast on the applicant’s alleged motive in going to the jewellery shop that morning.  Although the applicant has displayed considerable cunning in the past, it must be accepted that when interviewed the same day, the applicant immediately began by explaining why she felt she had been cheated by the jewellery shop and that all she wanted was her HK$8,500 back.  We have read the witness statements of PW2 in the court depositions and it is clear that the applicant had been pestering the jewellery shop regularly every one or two weeks for several months, demanding her money back on the basis that they had supplied her with a substandard ring.  When she entered the shop on 30 August 2015, she asked to speak to the manager and again asked for her money back.  And when she realised she was not going to succeed, she limited herself to the removal of two rings by force.

32.  We are not to be taken as suggesting that there was in fact merit in the applicant’s claim of being cheated by the jewellery shop: we are merely pointing out that she has all along consistently maintained she had been cheated and felt she should be given her money back.  It may be that her belief was wholly unreasonable: however, we cannot say that the belief was not genuinely held.  Nor are we to be taken as saying that her motive in wanting her money back provided any excuse, still less a defence, for behaving in the way that she did.

33.  However, once we accept, as we think we must, and as we believe the judge herself did, that there was a background to the offence, in which the applicant - rightly or wrongly, reasonably or unreasonably - felt aggrieved and wanted recompense, and further, that the applicant has obvious mental problems which made it difficult for her to understand how she should properly resolve her complaint, then the facts do not fit comfortably within the guidelines in respect of the robbery of a jewellery or goldsmith shop with an imitation firearm; which guidelines are primarily targeted at deliberate and violent assaults by individuals or gangs upon vulnerable jewellery and goldsmith shops, which the robbers expect to plunder of whatever valuable merchandise they can lay their hands on.  Accordingly, in our judgment, a more individualised sentence falling outside the established guidelines was called for.

34.  Having said that, the courts have long determined that the robbery of jewellery and goldsmith shops (and, for that matter, banks) are a particular scourge which must be met with condign punishment and severe deterrent sentences.  Similarly, the paramount consideration in sentencing the use of real or imitation firearms in the course of such a robbery must be deterrence.  We cannot ignore these public policy considerations in this particular case.  Arming oneself with an imitation firearm in order to take the law into one’s own hands must be firmly discouraged.  Quite apart from the consideration mentioned by the judge, which could lead to members of the public being put at risk by the police having to draw arms, it must be very frightening for anyone to have to stare down the barrel of a gun, which one would have to assume was real, during a robbery.  PW1 must have been very alarmed indeed to face a masked assailant with a firearm behaving in an agitated and irrational manner, and he would have been terrified at the moment that she fired at him.

35.  In our judgment, notwithstanding the obvious background to the offence and the applicant’s well‑documented mental condition, no other sentence than a significant and immediate sentence of imprisonment was appropriate.

36.  Given the circumstances of the offence and the offender, but also bearing in mind that the applicant already has a significant record of dishonesty and deceit, we consider that the starting point after trial for this offence should have been one of 7½ years’ imprisonment.  We would allow the applicant the same one‑third discount the judge accorded her for her plea and reduce the sentence to 5 years’ imprisonment.

37.  For the above reasons, we granted the applicant leave to appeal and, treating the application for leave as the hearing of the appeal, we allowed the appeal and reduced the sentence from 8 years’ imprisonment to 5 years’ imprisonment.

[1] For the offence of bigamy, the applicant had been committed by a magistrate at Shatin Magistrates’ Court on 6 April 2011 to Siu Lam Psychiatric Centre for 3 months.