The Queen v. Chan Che Fong

CACC000528/1988

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Coram: Silke, V.-P., Kempster & Penlington, JJ.A.

Date of Hearing: 19 May 1989

Date of Judgment: 19 May 1989

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J U D G M E N T

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Silke, V.-P.:

1. The Applicant, Chan Che Fong, was convicted after trial before Duffy, J. and a jury of two offences. The first of robbery and the second: possession of an imitation firearm at the time of committing that robbery. He was sentenced on the first count to six years' imprisonment and on the second count to one year's imprisonment to run concurrently with that on the first. He now seeks leave to appeal against sentence and this is the judgment of the Court upon that application.

2. The accepted facts, for there was little dispute as to the prosecution's case in the Court below, were that, having driven his car from his home and parked it on the sixth floor of a parking building at about 8.30 a.m., the Applicant went to the Hong Kong and Shanghai Bank in Luk Yeung Sun Chuen, Tsuen Wan at 8:35 a.m. and there he entered wearing a stocking mask over his face and carrying an imitation pistol. He announced a robbery and either then or a little later fired two shots, from this imitation pistol. One customer who was depositing $10,000 in cash, and which money was on the counter, grabbed it back but leaving behind a single $1,000 note which the Applicant appropriated. Another customer in the bank at that time, the bank was not busy there being but three or four customers there, realised that the gun was an imitation gun and grappled with the Applicant. Others joined in. The Applicant was subdued and the police arrived. He was placed under arrest.

3. The imitation gun was a copy of a Smith and Wesson, model 19 in .357" calibre and it was designed to fire dummy ammunition with the use of percussion caps. It was loaded with six rounds of this dummy amunition and two of the percussion caps had been discharged. No doubt to an uninitiated bystander such a gun would appear real.

4. The defence in the Court below was that the Applicant at the time of Commission of this offence was under the influence of an hypnotic drug such as to render him incapable of forming the necessary intent.

5. In the course of the trial evidence was given by psychiatric experts from both the Crown and the defence. Dr. Mak for the defence said it was his opinion that at the time of the offence the Applicant was suffering from a "fugue state". He described this as being a "dream-like mental condition in which the patient wanders away from his surroundings in an automatic state". He thought the explanation for this was the toxic effect of the hypnotic drugs of which the Applicant had probably taken an overdose. It was the Applicant's evidence that he had taken a total of ten of these pills in two lots of five and was unaware of what had happened until he found himself in a police station on the afternoon of the incident.

6. It was the Applicant’s evidence, and this was supported by the evidence of two doctors who were the suppliers on prescription of drugs to him that he had since 1981 been taking sleep inducing drugs. These had been supplied to him up to 1984 in a milder form but in 1984 he was supplied with a drug called "Rohypnol" which was described in evidence, and accepted as being, a very strong hypnotic drug.

7. I interpolate here that it seems extraordinary to us that two doctors independent of each other should prescription have continued supplying this man with these particular drugs when it is clear all the evidence in the below and from that which occurred that he was becoming and had become drug dependent. On some occasions his drug supply was replenished without the Applicant being personally seen by the doctor concerned.

8. The jury whose task it was to decide the case and bearing in mind the differing evidence of the experts did not accept that the Applicant was incapable of forming the necessary intent. It had been the evidence of Dr. Leung that while the Applicant was taking his strong benzodiazepine drug at the material time of the offence he nevertheless had knowledge of his acts and there was, as we have said, the evidence of the driving of the car, the parking of it on the sixth floor of a parking building and the going to the bank and circumstancesof the offence itself.

9. The trial judge was aware that subsequent to arrest and some ten days later the Applicant had shown symptoms of what can called "hypnotic withdrawal delirium" while in custody.

10. Mr. Macrae in his eloquent plea in the Court below which has been repeated to us today has suggested that this is a highly unusual case. The Applicant is aged 29, a member of a New Territories Clan living with a very protective family, his mother and his aunt; comfortable in means and basically a part of a middle-class Chinese family. He receives something in the nature of $3,000 a month from his mother. The family have extensive clan properties in the New Territories at Tsuen Wan.

11. Based on that and on the peculiar facts of this case he suggested to the trial judge, as he has suggested to us, that a probation order should be considered with conditions of attendance for the reduction of his psychological dependence on drugs. In a later report made out by Dr. Leung at the request of this Court the Applicant's physical dependency appears during the period he has spent in custody to have abated.

12. In passing the sentence he did, the trial judge took into consideration all the unusual circumstances of the Applicant and he said:

"It is obvious from the evidence that you are an incompetent robber and while that is normally not mitigation, I am prepared to accept that that incompetence as well perhaps as your motivation for committing the offence were inspired by the impairment of judgment which is the inevitable result of chronic drug abuse."

He had said earlier that the Applicant had chosen a course of conduct which led to his dependency on sleeping pills and over a period of years there did not appear to have been any serious attempt by either the Applicant or anyone connected with him and that must include the doctors who perscribed these drugs, to make a determined effort to break the Applicant of his dependency.

13. Had this case been without those peculiar factors the judge said he would have imposed a sentence of nine years' imprisonment but taking them into consideration he imposed the one to which we have earlier referred: a totality of six years.

14. We take the view that it is necessary in the interest of the public that those who commit robbery at banks, even if at the time they do so their judgment is impaired, should have sentences imposed which show the public disapprobation of such conduct. Further in the particular circumstances of this Applicant he clearly needs a substantial period of time in which to rid himself of his drug dependency both physically and psychologically.

15. We have considered anxiously that which Mr. Macrae has submitted to us, and we are grateful for the assistance he had given us, but we are not prepared to interfere with the considered sentence imposed by the trial judge.

16. The application for leave to appeal against sentence is refused.

Representation:

Andrew Macrae, Esq. (D.L.A.) for Applicant

A.A. Bruce, Esq. for Crown/Respondent