HKSAR v. Ng Oi Cheung

CACC 68/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 68 OF 2009

(ON APPEAL FROM DCCC NO. 1241 OF 2008)

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BETWEEN

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Before: Hon Stuart-Moore Ag CJHC and Saw J

Date of Hearing: 29 May 2009

Date of Judgment: 29 May 2009

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

Appeal against sentence

1.This is an application for leave to appeal against sentence in which it is plain that leave must be given.  Accordingly, we shall grant leave and treat the hearing as the appeal.

2.On 4 February 2009, the appellant pleaded guilty before Deputy District Judge Mierczak to a charge of attempted robbery.  The particulars of the offence were that the appellant, aged 47, attempted to rob So Wai-fong on 23 November 2008 at the Circle K Convenience Store at Kai Fat Path, Sun Hui, Tuen Mun, New Territories.  The facts were somewhat unusual and the judge stated that “as a result of what he [had been] told in mitigation, and the defendant having a clear record, [he would call] for a background report as well as psychological and psychiatric reports”.  These were duly prepared and presented to the judge who, on 17 February 2009, imposed a sentence of 3 years and 2 months’ imprisonment.

The facts

3.The case for the prosecution, on a purely superficial level, revealed a straightforward attempt to commit robbery.  The convenience store where the 43-year-old female victim (PW1) was working as a cashier, with just an 18-year-old member of staff to help her, was open at 5.25 am when the appellant walked into the shop.  PW1, who had been sorting out the newspapers, went to the counter to serve him.  The appellant, however, went towards her holding a piece of broken glass in his gloved hand.  The Summary of Facts stated that the appellant “asked PW1 whether he could have some money, to which PW1 replied ‘No’ and shouted for help”.  The appellant then repeated his request but PW1 was in shock and failed to respond.  The appellant, throughout this time, was holding the broken piece of glass in front of PW1.

4.PW1’s shout for help was fortunately heard by an off-duty police officer, PC 23557 (PW4), who happened to be passing the shop.  He looked inside in time to see the appellant holding a sharp implement about a foot away from PW1.  He promptly went inside and, on seeing him enter, the appellant left the area near the cashier’s counter and walked around the shop before leaving.  The appellant went in the direction of Tuen Mun Town Plaza with PW4 following a short distance behind.  Eventually, the appellant noticed PW4 and he stopped walking.  PW4 went up to him and asked whether he could do anything for him.  The appellant, in terms which would have meant very little at that stage, replied: “You cannot do anything.  I am no way out and this is not what I want”.  He then continued on his way.

5.By this time, PW4 was in contact with reinforcements and, after they had arrived, he identified himself to the appellant as a police officer. The appellant immediately dropped his glove and the piece of glass, together with a plastic bag he was carrying.  He put up no resistance when he was arrested and simply stated that he had only wanted money.

6.When the appellant’s plastic bag was searched, it was found to contain a number of letters and newspapers.  Three of the letters were addressed, respectively, to his wife from whom he was separated, to his girlfriend in the Mainland and to the police.  These were suicide notes.

7.The appellant was interviewed later in the day and, without prevarication, he admitted the offence.  He spoke of his separation from his wife and about how he had lived for a long time in the Mainland.  With the failure of his business there, he had come back to Hong Kong “a few days ago” and had tried in vain to contact his wife for money.  Eventually, his disappointment led to a decision to commit suicide by means of burning charcoal in an enclosed space.  He wrote a number of suicide notes but then found that he had no money to purchase the charcoal he needed to end his life.  At that moment, he decided to embark on the offence.  He found a glove and a piece of broken glass and went into the shop.  He stated that he now felt remorseful for what he had done.

District Court reports

8.In the court below, a detailed and extremely helpful report was provided by a probation officer, Mr Sam N F Li, from which it became apparent that the appellant had worked hard for most of his life but had recently fallen on hard times.  Mr Li was given the same account as the appellant gave to the police as to his reason for committing this offence. 

9.The appellant’s wife described the appellant as an amiable and dutiful person who led a simple life.  The appellant, she said, had regularly contributed $20,000 a month for his family’s upkeep.  She was aware that the appellant had developed a friendship with a woman on the Mainland and indeed it was this which had led to their eight-year separation.  The appellant’s wife also expressed concern about the “legal responsibility” of the appellant because she knew that he had become depressed when he was left jobless.  She was utterly shocked on hearing that the appellant had committed this offence as he was a “timid person who was scared of blood”.  She had heard him express suicidal thoughts in the past but it never occurred to her that he intended to carry them through.  She blamed herself for not giving the appellant support when he most needed it.  Whilst content to allow the appellant to return to her home, this was not possible as her son, who is also living there, was wholly opposed to such an idea.

10.Mr Li’s probation report provided a clear insight into a man whose self-esteem had declined to such a low level that he had seriously contemplated suicide.  He respectfully recommended, therefore, that this was a case where clemency might be given to the appellant.

11.A similar picture was presented by Ms Daisy H M Yeung, a clinical psychologist attached to the Correctional Services Department.  She conducted what she described as a “battery of psychological tests” to assess the appellant’s personality and intelligence.  It emerged that the appellant’s father had committed suicide, arising from marital discord, when the appellant was eight years old.  Other aspects of the appellant’s family history were also far from happy, culminating in what the appellant felt was betrayal by a brother-in-law who had allegedly stolen his clients and brought about the collapse of the appellant’s business.

12.Ms Yeung also dealt with earlier suicidal ideas and incidents which the appellant had experienced, including one where he was saved by a friend after he had cut his wrist.  Apparently, the appellant had never been in touch with any mental health services and “had no idea whether he needed such service”.  The appellant told Ms Yeung that the idea of killing himself by means of burning charcoal was because, ironically, he could not bring himself to jump from a tall building because of his fear of heights.  In the event, the appellant blamed himself for “not dying earlier” which he would have done if he had had the courage to jump from a building. 

13.The appellant was found by Ms Yeung to have “normal intellectual functioning” but, because of constant financial pressure and being taken advantage of by certain family members, he was labouring under an “accumulation of stress”.  In her opinion, this had caused the appellant to be severely depressed at the time of the offence so that his ability to think and his judgment became impaired by his poor mental state.  She said that: “… as he was too preoccupied by his own distress, and he thought he was going to die anyway, he had not adequately considered the consequences of his offending behaviour.” 

14.Ms Yeung was informed by the appellant that he could not discount the possibility that he would try to commit suicide in prison if he received a long sentence.  It was on this account that she formed the opinion that while the appellant’s risk of re-offending was “low”, it was necessary that “continuous close supervision by prison staff” should be kept “in view of his suicidal risk”.

15.The third report prepared for the court below was from Dr Amy C Y Liu, Visiting Psychiatrist at Siu Lam Psychiatric Centre, where the appellant has been held for most of the time since his arrest.

16.The appellant gave Dr Liu a similar history of depression and he described the prior suicidal events and thoughts which he had earlier spoken about to Ms Yeung and Mr Li.

17.The appellant was diagnosed by Dr Liu as suffering from a ‘Recurrent Depressive Disorder’ which, by 12 February 2009, when her report was written, was described as a ‘Moderate Depressive Episode’.  The appellant’s depressive illness appeared to show some response to antidepressant medication so that his mood had shown improvement and he “no longer had any pervasive suicidal idea[s]”.  Dr Liu stated that out-patient treatment would be helpful to the appellant and it is this which she recommended.

Sentencing conundrum

18.With all of the circumstances as they were presented before the sentencing judge, it seems very clear that the appellant committed this offence in a highly depressed state, having set his mind on ending his life.  If a disposal of the case had been recommended under the Mental Health Ordinance, Cap. 136, there would have been no question but that the appellant would have been dealt with in that way, but it was not.

19.As a result, therefore, we are now presented with someone who has been sentenced to a long term of imprisonment who in no sense resembles the usual robber for whom such a sentence would normally be appropriate, either as a punishment for the crime or as a deterrent to others or both.  In our view, the appellant plainly does not require punishment in the ordinary sense.  Equally, we do not consider that this was a case for a deterrent sentence when the appellant was not acting out of the usual motives which drive criminals to commit robbery but out of a simple desire to obtain just enough money to give him the means to commit suicide.

20.The difficulty facing us now, putting it bluntly, is whether it is possible to find a safe way for the appellant to be released back into the community with conditions which will ensure that he continues to take his medication or whether the risk of suicide is still so great that this course would not be in the appellant’s best interests.  It has to be remembered in this regard that, although sentenced to imprisonment, the appellant has been serving almost the whole of the time he has spent in custody in Siu Lam Psychiatric Centre where he has been receiving exactly the kind of medication he requires under strictly supervised conditions.

21.Accordingly, we requested the attendance of Dr Amy Liu and a probation officer to find out what was recommended by them as the best means of disposal as this had not so far been the focus of any enquiry.  We had in mind that a probation order, coupled with conditions, might provide the answer but this would depend to a great extent on whether the appellant had anywhere he could stay.  We also needed to know what safeguards should be put in place to ensure, so far as possible, that the appellant would be able to continue with the medication he needs in order to remain in full command of his mind.

22.The probation officer who attended was Mr Roger Laine.  He provided us with detailed report, updating us with all the information he was able to glean about the appellant, concluding that the appellant’s chances of getting “back on the right track in open society” were good.

23.Dr Amy Liu concluded that in-patient psychiatric treatment was not necessary but that post-release accommodation would need to be found for the appellant before out-patient treatment could be considered. 

24.We would like to express our gratitude to Dr Liu and Mr Laine for all the assistance they have given in dealing with this difficult sentencing conundrum. 

25.After a short adjournment, Mr Laine was able to find a suitable placement at the ‘half-way house’ for ex-prisoners known as ‘Sunrise House Hostel’ in Tin Shui Wai, New Territories.  It is perfectly plain to us, from what both Dr Liu and Mr Laine have told us, that a placement outside a custodial environment is in the appellant’s best interests.  It was fully explained to the appellant that we were considering a probation order with a condition of residence and out-patient psychiatric treatment.  He consented to this.

Conclusion

26.The sentence of 3 years and 2 months’ imprisonment is quashed.  In substitution, there will be an order of probation for 3 years coupled with conditions.  These are that the appellant:

(1)  resides for 2 years at the half-way house designated by the Probation Service for his accommodation; and

(2)  complies with all such directions as a psychiatrist or, as the case may be, a psychiatric nurse, shall give by way of out-patient treatment.

27.It is unnecessary to repeat the consequences of a failure to comply with this order as the appellant has already had this explained to him in full before being asked whether he agreed to such an order being made.

28.To this extent, the appeal is allowed.

Ms Winsome Chan, SPP, of the Department of Justice, for the Respondent.

Mr H Y Wong, instructed by Director of Legal Aid, for the Appellant.