HKSAR v. Wong Hoi Tin

DCCC 437/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 437 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant faced two charges on the indictment – charge 1 being attempted robbery, contrary to Section 10 of the Theft Ordinance, Cap. 210, and in the alternative, charge 2, being criminal intimidation, contrary to Sections 24(c) (i) and 27 of the Crimes Ordinance, Cap. 200.

2.The Defendant pleaded not guilty to the first charge of attempted robbery but admitted the alternative charge 2 of criminal intimidation.  The Prosecution accepted the Defendant’s plea to the alternative charge 2 of criminal intimidation, and I dismissed charge 1 of attempted robbery.  Defence Counsel had no objection to this course. 

3.The Amended Summary of Facts dated 28^th June, 2016 was read into the record by the Prosecutor.  Defence Counsel confirmed that these were admitted by the Defendant, as did the Defendant himself.

Facts

4.The Amended Summary of Facts disclose that G.S. Jewellery, a jewelry shop, is situated at Shop No. 143, 1^st floor, Chung Fu Plaza (Phase II), Tin Shui Wai, New Territories. On 22 March, 2016,  Ms Ng Ka-hung and Ms Lo Ka-po worked as salespersons at the premises.  The jewelry shop had opened for business at 9.30 a.m. and Ms Ng and Ms Lo were on duty in the shop.  At 17.50 hours, the Defendant suddenly entered the shop and shouted to Ms Ng “Robbery! Call the police.”  He took out a fruit knife with a blade 12 cm long from his bag and displayed it to Ms Ng.  He put the knife on a shelf and then sat beside it.  Ms Ng did not press the anti-theft alarm as she was scared that it might provoke the Defendant to cause injury to other shop staff and to herself.  No staff member gave any money or jewelry to the Defendant.  Ms Ng took an opportunity and rushed out of the premises, and reported the case to the police.  The Defendant remained in the shop, and did not attempt to flee.  Upon police arrival at 18.00 hours, the Defendant was apprehended inside the shop premises and made no resistance. Under caution, he admitted that he owed a debt of HK$70,000 to another person and had no money to make repayment.  In the subsequent video record of interview under caution at the police station,  he said he worked as a security guard and earned $10,000 each month. He suffered from schizophrenia and lived in a rehabilitation centre.  He took the fruit knife from the centre and brought it to the shop to commit robbery. But in fact he did not have any genuine intention to commit robbery. He had threatened a staff member of the shop with an illegal act, namely robbery, and directed them to call the police as he wanted to be arrested by the police.  He owed a debt of $70,000 to a financial institution and if sentenced to imprisonment, he could evade repayment of the debt.

4. When he appeared in the Magistrates’ Court, two psychiatrists’ reports were called for on his fitness to plead, and these confirmed that he was fit to plead. In the 2 psychiatrists’ reports before me, both psychiatrists have also confirmed that he is fit to plead.

5.The Antecedent Statement was read into the record by the Prosecutor.  No issue was taken on the contents. These disclosed that the Defendant was 32 years old and born in Hong Kong.  He had a previous clear record.  He was educated in Hong Kong until Form 5.  He had mainly worked as a security guard, and was so employed at the time of his arrest.  He disclosed that he suffered from paranoid schizophrenia  during police inquiry.  He was single and lived with his 72 year old mother and 41 year old elder brother prior to his arrest. His father had died in 2011.

6.Counsel for the Defendant submitted that the Defendant’s reason for offending was as he told the police and set out in the Amended Summary of Facts.  She asked that 2 psychiatric reports be called for.  Before deciding the appropriate sentence, I adjourned the matter for a background and two psychiatric reports from psychiatrists.

7.The reports are now before this Court, and I understand from MsWong who appears for the Defendant that the contents of the reports have been explained to him and he accepts the contents of those reports and the recommendation made of a Hospital Order. I note that the Defendant is of previous clear record.  In determining sentence, I have carefully considered all that has been urged upon me by Counsel as well as the contents of the reports now before me.

The Probation Officer’s Background Report

8.This sets out the Defendant’s family background. His father passed away six ago. The Defendant is the youngest of 3 children.  His elder brother lived apart, while the Defendant had lived with his mother and elder sister for many years. The Defendant had completed secondary school. After leaving school, he had worked at various jobs, and was working as a security guard prior to his arrest. The Probation officer said that the Defendant’s timid personality and poor social skills had made him a target of bullying during his school days.  When he joined the work force, he suffered more bullying from his work mates, resulting in a frequent change of jobs.  He displayed psychotic symptoms of incoherent speech and audio hallucination in around 2006.  He also had persecution feelings against his elder sister and this led to frequent sibling disputes. His family had taken him for psychiatric treatment in April, 2011.  He had threatened his elder sister with a chopper and thereafter voluntarily admitted himself into the Castle Peak Hospital for inpatient psychiatric treatment in June 2011. This was the first inpatient treatment.  There have been two other admissions for treatment.  The Probation Officer concluded that the Defendant is ‘a mental patient on regular medication for schizophrenia since mid-2011.  Due to his social inadequacy, he has been a victim of bullying in and out of school.  The stress of teasing and harassment from workmates has led to the accused’s  jumping around jobs. Worse still, his prosecution feeling has caused chronicle sibling dispute for which he has sought refuge at HWH (Mental Health Association of Hong Kong Hin King Half Way House) or sub-divided cubicle outside home in recent years. Feeling lonely and defeated, the accused has become easy prey for swindlers on street to have befriended him for romance scam. Being conned into taking out loans from loan shark to satisfy vow of love, the accused has incurred heavy debt to have the jail an easy hide away. In view of his past compliance with the mental treatment, peace keeping at HWH, motivation to find alternative jobs and clear record over the past years, the accused is not considered as any hard core criminal’.  (Although there is a discrepancy between the Antecedent Statement and the Background Report in the in the Antecedent Report it is recorded he lives with this mother and elder brother while the Background Report refers to his living with his mother and elder sister, in my view this discrepancy is of little significance).

The Two Psychiatrists’ Reports

9.Dr S. H. Lui, in his report dated 11 August, 2016, sets out the Defendant’s family background.  He was born in Hong Kong, the youngest of 3 children. He finished secondary school without qualifications and was employed in casual work. He had admitted to having experimented with dangerous drugs in his younger days but said he has not done so for 10 years. He had been suffering from schizophrenia for some 5 years marked by auditory hallucinations, delusions of persecution and aggressive behavior. He had been treated in hospital 3 times previously, the last admission being to the Eastern Hospital from March to September, 2013.  At the time of the offence he was living in a halfway house and worked as a security guard.  Upon examination of the Defendant, he found the Defendant ‘of restricted affect and not quite explaining himself. He tells of voices talking ill of him making him afraid. He says these voices are now infrequent but believes that he will still be harassed and tracked by triads on his release from prison. And while he accepts medication he insists that the persecution had been real’.  Dr Lui opined that the Defendant was suffering from ‘paranoid schizophrenia, not in good remission, delusions unresolved.  A further period of inpatient treated is indicated’ and he recommended the making of a hospital order under Section 45 of the Mental Health Ordinance for a period of 4 to 6 months.

10.Dr. Amy Liu, in her report dated 11 August, 2016, sets out the Defendant’s family background – he was a security guard and half-way house resident, and ranks the youngest of 3 siblings. There is no family history of mental illness. He had normal early developmental milestones and studied up to Form 5 with poor academic results.  He started working at the age of 18 years and worked mainly as a security guard.  He had held his present job for about 10 months.  He had a history of schizophrenia, with 3 hospital admissions, the most recent being in 2013.  He had regular follow-up at the Tuen Mun Mental Health Centre. He manifested residual hallucination all along but reported it to be not disturbing. He kept feeling he was being pinpointed by his colleagues. He believed he had irritated some triads, who then disturbed him and scolded him with foul language. He told Dr. Liu that he had borrowed $70,000 from a financial agent on 6 separate occasions from late 2015 to March 2016 for a friend to settle his credit card bills.  His friend could not borrow the money because of a lack of credit. He later decided to rob a jewelry store for $70,000 – he took a knife from the half-way house and went to a nearby jewelry store, put the knife on a showcase and told the staff he wanted to rob.  He then changed his mind and asked the staff to make a report to the police, and sat down to wait for the police.  He had been remanded at the Siu Lam Psychiatric Centre since May, 2016. He was diagnosed with paranoid schizophrenia in relapse. He was prescribed with medication.  Despite becoming relatively more settled, active persecutory delusions still persisted.  She opined that a period of inpatient treatment was necessary and arrangement of supervised accommodation in the long run was necessary. She also recommended the making of a hospital order under Section 45 of the Mental Health Ordinance for a period of 4 to 6 months.

Sentencing Considerations

11.Clearly the Defendant is in need of continued treatment for both his own protection and the protection of the public at large. 

12.There are no sentencing guidelines for offences of criminal intimidation. The gravity varies from case to case and depends on the facts of each case. The maximum penalty upon conviction on indictment is imprisonment for 5 years.  Imprisonment is common in the more serious cases of criminal intimidation.  I would view the facts of the present case as serious and warranting a term of imprisonment.  The Defendant entered a jewelry shop and shouted ‘robbery, call the police’ and took out a fruit knife with a 12 cm long blade from his bag  and displayed it to a female staff member of the shop before placing it on a shelf and sitting beside it until the police arrived and apprehended him.

13.It is clear from the materials before me as well as from the opinions of the two doctors and their recommendations contained in their reports that the Defendant is a person with a mental illness who needs proper treatment.  At present, he poses a danger to the community. I am aware of the gravity of the offence he has committed, but I cannot ignore the Defendant’s need for psychiatric treatment.

14.The court is not obliged to follow the recommendation of the two psychiatrists and make a hospital order. But I take into account the following. First the Defendant is of previous clear record. Second although a knife was displayed to a female member of staff after the Defendant had shouted ‘robbery, call the police’, he placed the knife on the shelf and sat beside it until the police came – he did nothing else. Although the victim and the other persons in the shop must have been put in great fear upon hearing the Defendant’s words and seeing the knife, no harm was apparently caused to any of them.

15.The reason for doing what he did, as expressed to the Probation Officer and as appears in Dr. Liu’s report, reflects a very odd line of reasoning, and this in turn must reflect a chronic mental condition.  Dr. Liu has also opined the need for arrangement of supervised accommodation for the Defendant in the long run.

16.In cases such as this, there is a need to balance the punishment of the offence for which the Defendant has been convicted with the rehabilitation of the Defendant. In all the circumstances, I shall adopt the recommendation and make a hospital order, and this will be for a period of 6 months. This hospital order is made pursuant to the recommendation from two psychiatrists and is made under section 45 of the Mental Health Ordinance. For such purpose, the Defendant will be committed to the Siu Lam Psychiatric Centre to serve the hospital order.