HKSAR v. GAO YUQI AND OTHERS

DCCC 475/2017

[2018] HKDC 64

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 475 OF 2017

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REASONS FOR SENTENCE

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1.  The victim in this case, a 16-year-old girl, was an acquaintance of the 1st defendant, Miss Gao Yuqi, a 34-year-old woman. They met up on the 11th day of January 2017 for drinks. The drinks then evolved into a dinner which was then followed by another session of drinking until the next morning.

2.  Some time in the afternoon on the 12th day of January, after they parted company, the 1^st defendant found that a rather large amount of cash had gone missing from her purse.  She believed that it was the victim who stole it, so they met up again and ended up eventually in the 1^st defendant’s flat in Paterson Street, Causeway Bay.

3.  Inside the flat were also her parents (the 2^nd and the 3^rd defendants) and a child.  The 2^nd and the 3^rd defendants were in Hong Kong for a visit.  There the 1^st defendant demanded the victim to return the money.  The victim denied the theft and the discussion deteriorated into an altercation, during which the 1^st defendant damaged the cell phone of PW1.  The victim’s plea to be allowed to leave was unheeded.

4.  The 1^st defendant also slapped the victim on the face several times and her attempts to leave were blocked.  During the altercation, the 2^nd and the 3^rd defendants grabbed the victim’s clothes.  The 2^nd defendant pulled her hair, as did the 1^st defendant, who also grabbed the victim’s neck and pulled her ear.  Together, they pulled the victim back into the flat.

5.  Eventually, the victim gave in and admitted that she stole the money. Then, with the 2^nd defendant’s phone (handed to the victim by the 1^st defendant) the victim managed to call her father and instructed her father to report to the police. 

6.  The fiasco ended up in a total of four charges.  On the facts of the case admitted by the defendants and also upon the pleas of the defendants, the 1^st defendant was convicted of one count of false imprisonment.  The three defendants were all convicted of one count of AOABH.  In addition, the 1^st defendant was found guilty of one count of criminal damage of the cell phone in question.

Sentencing consideration

7.  The charges are extremely serious and the defence fairly admitted that usually an immediate custodial sentence is called for.

8.  However, the facts are so unusual and also in view of what the lawyer for the defence said, I decided to call for reports from the probation officer, the psychologist and the psychiatrist to have a better understanding of the background of the 1^st defendant.

9.  I will not repeat in full what is in the reports.  The 1^st defendant is a new immigrant from the Mainland.  As a woman of a minority race, she had been subject to a series of despicable treatments, which, even if you put to a movie script, one would have wondered how every conceivable disaster could happen to one person in one lifetime.  Suffice it to say that the 1^st defendant had proved herself to be a survivor.  Despite all the scars left by her previous experience, she managed to survive and come in Hong Kong.

10.  I notice the rather unusual relationship between the victim and the 1^st defendant.  One could find it difficult to understand how a 16-year-old girl could strike up an emotional relationship with the 1^st defendant.  From the mitigation letters and from the contents of the probation officer’s report, one can surmise that the 1^st defendant was otherwise a very generous person and had been eager to strike good relationship with other people.

11.  Having reviewed the psychiatrist’s report and the psychologist’s report, I do not find any clinical cause for her behaviour.  The 1^st defendant would have to be fully responsible for her crimes.

12.  In considering the proper sentence, I agree with the defence that this is not the usual run-of-the-mill blackmail case.  As to the AOABH charge, I accept that such behaviour was motivated by a genuine belief on the part of the 1^st defendant that the victim had stolen from her.  I am not saying that this is true or false, but the genuine belief seemed to have made her behave and react in an excessive manner.  I believe that the charge of false imprisonment was also motivated by the same belief.

13.  In view of the particular circumstances of the case, I do not consider previous decisions on false imprisonment or crimes of violence to be of direct application in this case.  Nonetheless, in the case of the 1^st defendant at least, these are serious offences.  A term of imprisonment is warranted.

14.  I then turn to look at the mitigating factors emanating from her background.  While this court is sympathetic to the 1^st defendant’s predicament, her exodus from the Mainland and her background to her present situation, nonetheless she is a mature person in full command of her mental and physical faculties.  She should be held responsible for what she did.

15.  I also note that she has a young daughter.  It does not seem that she did a very good job in parenting.  However, this is not a reason to find against her. 

16.  This is one of the situations again that the court’s power is limited. We are not the Social Welfare Department.  We are here to deal with situations in which the accused persons have committed a crime and to mete out punishment in the hope that the same would give a minimum guidance to the members of the public and to have a certain deterrence effect of the future behaviour of the accused person.

17.  Having reviewed the facts as a whole, I believe that it would serve the society no good to sentence her for what she had done in the form of a term of immediate imprisonment.  I am aware what I am going to order here would only be delaying the problem.  With her lifestyle, I dare not think what would happen to her daughter when she grows up.  It probably would be a case of repeating the 1^st defendant’s fate.  The child would be growing up unhappy with a scarred childhood and a scarred mental condition.  This is, however not anything this court can do.  I can only hope that the Social Welfare Department could keep an eye on the case.  I cannot pontificate what the 1^st defendant should behave in the future; as each has his or her own cross to bear.

18.  For the present offences, having reviewed the facts as a whole, in particular the motivation she had for doing what she did, I will think on the whole, for the most serious offences of false imprisonment and AOABH, a term of imprisonment of 12 months would be a proper starting point.

19.  In view of her plea of guilty, they will be reduced to 8 months, 2 months of which is to run consecutively. 

20.  For Charges 1 and 2, she is sentenced to a total of 10 months’ imprisonment.

21.  As for the criminal damage, 3 months’ imprisonment, reduced to 2 months to take in consideration of her guilty plea.  It would be consecutive to Charges 1 and 2.

22.  So, in all, it is 12 months’ imprisonment for the 1^st defendant.

Suspended Sentence

23.  I turn to consider whether it is a proper case to suspend this term of imprisonment.  As I have pointed out in this case earlier, this seems to be one of those unusual cases.  Maybe it is not that unusual, since it does not seem that anyone involved was actually innocent.  In saying so, I am not blaming the victim.  I am just pointing out that there may be factors which are not admissible or this court is unaware of, and I am strongly suspecting that the court is not presented with the whole set of facts.

24.  I do not consider on the whole this case should be one that send the 1^st defendant away immediately.  Even though the 1^st defendant has so far proved to be a failure in mothering, one can always hope that things would improve along the way, either in terms of her circumstances or her mental capacities, but that is again not for this court to conjecture or project what would happen in the future.

25.  However, the child does need her mother and that, though not being exactly a relevant factor for considering a suspended sentence, it is part of the factors that led me to the conclusion that it would serve no practical purpose or would not serve the society in any positive manner by ordering the sentence to run immediately.

26.  Having considered the matter as a whole, I would order the total of 12 months’ imprisonment to be suspended for 2 years.

27.  The 1^st defendant is hereby warned that if in the coming 24 months she committed further offences, in particular those involving violence, these 12 months would take effect in addition to whatever punishment the other offences might entail.

28.  I turn to consider the sentences of the 2^nd and the 3^rd defendants. 

29.  They are, as I said before, visitors apparently invited by the 1^st defendant to come to Hong Kong to take care of the child.  They are all aged 60.  The 3^rd defendant suffered from schizophrenia.  At the time, he was receiving outpatient treatment in a Hong Kong hospital.  I was also informed by the defence that they were staying in Hong Kong solely for the reason of this trial, since their visa had expired.

30.  In this case, they were helping their daughter in stopping the victim from leaving, in the process pulled her hair and exerted some degree of physical violence.

31.  I note that the violence was not the most serious of its kind and I accept that their belief that their daughter was wronged by the victim had been genuine, but again, as I pointed out earlier, this is not the way to behave - not in Hong Kong, not in anywhere else in the world.

32.  So for Charge 2, each the 2^nd and the 3^rd defendants is sentenced to a term of imprisonment of 9 months.  They are reduced to 6 months to reflect the guilty plea.

33.  In view of their status in Hong Kong and in view of particular circumstances of this case, I do not consider that detaining them at the expenses of the Hong Kong citizens would serve any purpose.

34.  I would therefore order that the 6 months’ imprisonment for the 2^nd and the 3^rd defendants to be suspended for 2 years.  Again, I am warning the 2^nd and the 3^rd defendants the sentence would have no direct effect on their right to come to Hong Kong again, but if they do come to Hong Kong and if they do commit offences involving violence, this 6 months’ imprisonment would take effect in addition to whatever punishment the other offences might entail.