HKSAR v. SHI BAOYUN

DCCC 796/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 796 OF 2015

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REASONS FOR SENTENCE

The defendant pleaded guilty to 1 charge of "Administering paroxetine and quetiapine with intent to commit an indictable offence" (Charge 1), 1 charge of "Theft" (Charge 2), 1 charge of "Blackmail" (Charge 3) and 1 charge of "Assault occasioning actual bodily harm" (Charge 4).

Summary of Facts

2.  The defendant is a mainland resident.  She and Mr. X (aged 72) became lovers in 2014.

3.  The defendant came to Hong Kong on 17 April 2015.  She persuaded Mr. X to withdraw all his savings from Chong Hing Bank and then put the money in China Construction Bank as time deposit with a higher interest rate.

Charges 1 & 2

4.  About 9:30 am on 20 April, the defendant accompanied Mr. X to withdraw HK$300,000 cash from Chong Hing Bank.  Mr. X placed all the money in his handbag.  They returned to Mr. X's home at Wan Tsui Estate, Chai Wan an hour later.

5.  At Mr. X's home, the defendant prepared some sesame sweet soup, of which Mr. X consumed a bowl.  They then took a nap together.  Mr. X had washed his bowl before he went to bed.

6.  Mr. X woke up around 8:00 pm the same day.  He found the defendant missing and so was his HK$300,000 cash.  There were signs of ransacking near the wardrobe, but nothing else was missing.  Mr. X normally naps for about 4 hours but his nap that day was unusually long.  He felt suspicious and reported the matter to the Police.

7.  The bowl and the spoon which the defendant had used for consuming the sesame sweet soup were examined by a Government Chemist.  Paroxetine and quetiapine were found on both eating utensils.  Paroxetine is an antidepressant and quetiapine, an antipsychotic drug.

Charges 3 & 4

8.  About 3:00 pm on 19 May 2015, the defendant went to Mr. X's home.  She demanded a sum of RMB200,000 from Mr. X.  She claimed that she was pregnant and needed that sum to raise the child.  Mr. X refused, saying that he only had HK$120,000.  He tried to leave, but the defendant did not let him.  She grabbed Mr. X's neck, bit his left thumb and pushed him onto the floor, causing him to hit a trolley.

9.  The defendant stopped assaulting Mr. X when he promised to give her money.  She forced Mr. X to write a note stating the he owed her RMB200,000 ("the Note") as parting fees.  The defendant demanded Mr. X to give her HK$120,000 on or before 4:30 pm that day.  As a result, they went to a bank, at which Mr. X purchased a cashier order in the sum of HK$120,000 payable to the defendant.  They went their own ways afterwards.  Mr. X relayed the incident to his daughter.  They decided to report the matter to the Police.

10.  Mr. X was sent to the hospital later on the same day.  He was found having sustained abrasions on his right chest wall, neck, right wrist and left elbow.  Small bitten wounds were also found on his left thumb.  He was discharged on the same day.

Arrest of the defendant

11.  About 9:00 am on 21 May 2015, PC 14270 was on his way to see Mr. X to investigate this case.  He noticed the defendant following him all the way to Mr. X's home.  After confirming her identity, PC 14270 arrested the defendant.  Under caution, the defendant denied stealing HK$300,000 from Mr. X.  Rather, she alleged Mr. X having given her HK$150,000 to open a time deposit account.  She claimed that Mr. X voluntarily wrote the Note upon knowing that she was pregnant.  But he later took the Note back and they fought for it.  During the scuffle, she grabbed his neck; bit his fingers and hands; and pushed and kicked him.  When they calmed down, Mr. X went to the bank and purchased her a cashier order in the sum of HK$120,000 as parting fees, which was later revoked by him.

12.  Whilst the defendant was in jail custody, Mr. X received 2 letters from her respectively on 29 May and 5 June 2015.  In her letters, the defendant stated that she was remorseful for stealing money from Mr. X and asked to be forgiven.  Under caution, the defendant admitted having sent the 2 letters to Mr. X.

Mitigation & Sentence

13.  The defendant is now 35 and a mother of 3 children.  She has a clear record.  Defence lawyer Mr. MUI informed me that the defendant has so far lived a rugged life.  She comes from a poor rural family.  She received very little education and got married at a young age when she got pregnant.  Her mother considered the pre-marital pregnancy a disgrace and distanced herself from the defendant.  Married life was not happy either.  The defendant is divorced and needs to raise 3 children all by herself.  As a result, she developed symptoms of depression in 2008. She has been receiving treatment and medication in the mainland.

14.  The defendant was introduced to Mr. X by a friend in 2014.  Mr. X told her that his wife had a stroke 10 odd years ago and is in vegetative state lying in a hospital bed in Hong Kong.  The defendant believed Mr. X was a lonely old man and began to have feelings for him.  She soon fell in love with Mr. X and they became sexually intimate.

15.  Shortly before she committed the present offences, the defendant discovered that she was pregnant with Mr. X's child.  She told Mr. X the good news, but he did not want the child and asked her to get an abortion.  The defendant was heartbroken.

16.  In mitigation, Mr. MUI submitted that the defendant just wanted to live a happy life with Mr. X.  She felt that Mr. X should be responsible for the living expenses of his own child. She thought putting 1 dose of her depression medicine in the sweet soup would calm him down so that she could reason with him.  She had no intention to cause Mr. X any harm.  The defendant took the HK$300,000 cash to repay the debts she owed to loansharks.  She is truly remorseful.  She has made full and frank admissions to Mr. X and the Police.  Mr. X has written a letter to court to mitigate for her.

17.  Mr. MUI also submitted that the drugs used by the defendant were not lethal; she used only 1 dose of her daily medication.  Furthermore, she had the abortion whilst being remanded in jail custody.  Regrettably, it was not performed properly and caused her persistent vaginal bleeding.  Remedial surgery was required.  All these events were a traumatic experience to her.

18.  The defendant's life experience is no doubt tragic.  But having a rugged life is no excuse for transgressing the law.  Very often, alternatives are in fact available when we only see a brick wall in front of us; we just need to take a step back and solutions to our problems would appear.

19.  For Charge 1, I accept that neither the 2 drugs nor their dosage were lethal.  They only made Mr. X's nap a few hours longer than usual.  There is no evidence suggesting that his high blood pressure upon admission to the hospital was caused by the drugs in the sweet soup.  Having considered the authorities submitted by Mr. MUI[1], I adopt a starting point of 15 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 10 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 10 months' imprisonment.

20.  For Charge 2, HK$300,000 is a substantial sum by any standard.  Even if the defendant was pregnant with Mr. X's child, she had no right to his money.  Mr. X has already purchased a home for her in the mainland, which is held in their joint names.  Furthermore, Mr. X has no obligation to pay the debts owed to loansharks by the defendant.  A "breach of trust" element is clearly involved in this offence.  I adopt a starting point of 2 years' imprisonment[2].  With the guilty plea, I sentence the defendant to 16 months' imprisonment.

21.  For Charge 3, the defendant was only able to obtain the Note from Mr. X.  When this offence took place, she had already stolen HK$300,000 cash from Mr. X.  She came back to ask for more.  I adopt a starting point of 12 months' imprisonment.  With the guilty plea, I sentence the defendant to 8 months' imprisonment.

22.  For Charge 4, the injuries sustained by Mr. X are minor, but the old age of Mr. X does constitute an aggravating factor.  I adopt a starting point of 6 months' imprisonment.  With the guilty plea, I sentence the defendant to 4 months' imprisonment.

23.  Having considered the totality principle, I order the sentences to run in the following manner :-

(i) 6 months in Charge 1 consecutive to Charge 2;

(ii) 6 months in Charge 3 consecutive to Charges 1 and 2; and

(iii) 2 months in Charge 4 consecutive to Charges 1, 2 and 3.

Thus, the total prison term shall be 30 months.