HKSAR v. Chan Chun Hoi

DCCC65/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 65 OF 2009

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Before:   Deputy District Judge A. Wong

Date: 27 March 2009 at 10.59 am

Offence:  Robbery, etc.  (搶劫等罪項)

Reasons for Sentence

1. The defendant pleaded guilty to one charge of robbery and one charge of wounding with intent to cause grievous bodily harm.

2. In sentencing, I take into account the whole circumstances of the case including its nature and facts, background of the defendant and mitigation put forward on his behalf.

3. I also have had regard to the information and recommendation in two psychiatric reports.

4. The case arose from a shop robbery.  The defendant entered a 7-Eleven shop alone holding a beer bottle.  He hit the bottle on the counter, breaking it, and then used the broken bottle to threaten two shopkeepers.

5. He demanded them to take out all the money otherwise he would stab them to death.  He kept swearing and kicking the door of the cashier counter to try to gain entry, but failed.  Feeling scared, the shopkeepers handed the defendant $5,290.  The defendant also demanded to have three cartons of cigarettes.  The staff acceded to his demand.  On his way out, the defendant took a bottle of drink from the counter.

6. He left the shop and then proceeded to a restaurant nearby.  The staff followed him and made a report to the police.

7. When police officers arrived, the defendant was pointed out.  He was counting banknotes.  He suddenly stood up and attacked one of the officers with the broken beer bottle.  Despite defending himself with a baton, the officer suffered abrasions on his left arm and right elbow, laceration on his left wrist and deep wound on his left hand, which required six stitches as treatment.  Eventually, the defendant was subdued and arrested.

8. He admitted to have committed the robbery and he said he did so since he had no money for a meal.  He said he attacked the police officer with a view to escape.

9. The defendant is 54 years of age.  He is divorced and living alone.  I am told that he has been unemployed for over 20 years and is living on a monthly CSSA allowance for about $4,000.

10. I am also told that he had lost his allowance.  Having no money, he committed the robbery out of desperation and hunger.

11. It was submitted that the assertion is borne out by the fact that the defendant went to a restaurant immediately after he robbed the money.

12. The defendant is not a first offender.  He has three criminal convictions, but the first two took place 20 years ago.  The first conviction was for gambling, he was fined.  In 1988, he was bound over for the offence of possession of offensive weapon.  He was last convicted in September 2001, for the offence of wounding with intent.  A hospital order of an unspecified duration was imposed.

13. Two reports from psychiatrists, obtained some 20 days ago, revealed that the defendant has been suffering from schizophrenia since 1986.  He had been admitted to psychiatric hospitals for treatment many times and was last discharged in 2006.  He is followed up by outpatient psychiatric centre.

14. When he was examined on the present occasion the doctors found his mood was not depressed nor elated, but was with incongruent effect.  It was found that he had residual delusion.  The doctor said that otherwise he did not show signs of mood and other mental disturbance.  Both doctors are of the opinion that the defendant is fit to plead.  They also shared the opinion that inpatient treatment is not necessary for the defendant at this stage and follow up in outpatient psychiatric clinic is recommended.

15. Today, learned counsel for the defence confirms that there was no indication that any further psychiatric report was necessary.  Arrangement has been made by Correctional Services Department for the defendant to attend psychiatric treatment while he was remanded. 

16. I see no reason not to accept the recommendation of the doctors that no hospital order is called for.  If continuous psychiatric treatment is necessary there are facilities and mechanism so that the Correctional Services Department can make arrangement for the defendant to receive it.

17.   In mitigation, learned defence counsel stressed that the defendant had been cooperative upon arrest and that he pleaded guilty to the charges.

18. The nature of the offences committed by the defendant is serious.  When the defendant committed the offence of robbery, he equipped himself with a broken glass bottle, which could be used to cause substantial injuries to others.

19. Learned defence counsel told the court that the defendant had just picked up the glass bottle outside the shop.  I have no reason not to accept this assertion.  The defendant displayed the broken bottle to the shopkeepers and his overall behaviour had caused them much fear.  He did not use any violence on the victims.

20. Having had regard to cases like Mo Kwong Sang [1981] HKLR 610 and Kwok Chi Keung [1993] 2 HKCLR 294, I am of the view that a custodial sentence is inevitable and a starting point of 5 years is appropriate for a robbery of this nature and severity.

21. As regards to the charge of wounding with intent, the defendant used a broken glass bottle to attack a police officer with a view to escape.  His attack caused the officer quite substantial injury.  There is no sentencing tariff for this kind of offence.  Having had regard to the case of HKSAR v Lau To CACC 209/2000, I adopt a starting point of 3 years.

22. The defendant pleaded guilty.  He is, of course, entitled to a one-third discount for this reason alone.

23. Obviously, at the time of the offence, the defendant was suffering from a mental illness.  He has been suffering from such illness for a long time.  Though longstanding it is, from the reports it appears that the illness is at present not at a severe state.  There is no suggestion either from the report or elsewhere that the defendant’s mental state had significant bearing to his commission of the offences.

24. In all the circumstances, I am of the view that the defendant deserves a bit of further discount on ground of his mental illness.  Based on the matters aforesaid, I impose the following sentences:  Charge 1, 36 months; Charge 2, 21 months.

25. Learned defence counsel submitted that the two offences arose from the same series of incidents and the sentences should, therefore, run concurrently.  However, the nature of the two offences is completely different.  Besides, the second offence was committed against a police officer and with a view to escape on the part of the defendant.  If wholly concurrent sentences are imposed, arresting police officer would be given no protection as there would be no deterrence to persons being arrested to assault a police officer in order to escape.  I therefore do not consider it appropriate to order the two sentences to run wholly concurrently.

26. Having regard to totality, I order 12 months of the sentence imposed on Charge 2 to run consecutively to the sentence imposed on Charge 1, making a total sentence of 48 months.