HKSAR v. Kimu Asha Abdallah
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DCCC 629/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 629 OF 2014 --------------------
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--------------------- Reasons for Sentence --------------------- 1.The defendant pleads guilty to one charge of robbery, contrary to section 10 of the Theft Ordinance, Chapter 210, Laws of Hong Kong. Facts 2.Around 6 p.m. on 12 April 2014, while the victim was standing behind the reception counter of a laundry shop in Chungking Mansion and waiting for the return of the shop owner, the defendant arrived at the laundry shop with a fruit knife in her hand. She pointed the knife at the victim and demanded her to give her money. While the victim was stepping back into the laundry shop, the defendant took away the victim’s mobile phone (valued at HK$4,500) which was placed on the reception counter and fled. The whole incident was witnessed by the owner of the laundry shop and by a shopkeeper of another shop in the vicinity. The shopkeeper made a report to the police. They had seen the defendant lingering around the neighbourhood naked a few times prior to the offence. 3.Police officers arrived at Chungking Mansion shortly afterwards. They intercepted the defendant for investigation because her appearance matched the description of the robber. While the police investigation was going on, the shopkeeper who called the police identified the defendant as the robber to the police officers. 4.The victim’s mobile phone has not been recovered. Criminal record 5.The defendant has 3 previous convictions involving 4 charges. On 10 July 2012, she was convicted of theft (shoplifting) and breach of condition of stay and was given a suspended sentence for each offence. On 4 December 2013, in two separate cases, one for theft (shoplifting) and the other for criminal damage, she was sentenced to a total of 16 days’ imprisonment. Personal and family background 6.The defendant is 26 years old. She was born in Tanzania. She was the only child of her parents. Her father passed away in 1992 while her mother passed away in 1995. She was raised by her maternal aunt and received education in Tanzania up to a level equivalent to Form 5 in Hong Kong. She had little working experience there. She is single. However, out of a relationship with her then boyfriend in Tanzania, she has a daughter now aged 6. She has separated from that boyfriend who has custody of the daughter in Tanzania. 7.According to the information provided by Mr. Powner, learned solicitor for the defendant, the defendant’s father was a high ranking army officer who died when he was in active service during a political turmoil in Tanzania. Her mother was a police officer. Her parents were relatively privileged and comparatively wealthy in Tanzania. After they had died, the defendant’s uncle started to threaten and abuse the defendant with a view to getting all her money. She was subject to torture in Tanzania, and her life was in danger. Upon the advice of her friends, she came to Hong Kong to seek asylum on 26 February 2012. 8.Upon arrival in Hong Kong, the defendant filed her application for asylum as a torture claimant and as a refugee on 15 July 2012. She however did not pursue her application because of her drug addiction (which will be detailed further later). She was informed by her case officer in December 2013 that her application had been closed. She then made another application in the same month. She has no relative in Hong Kong. She came to know her current boyfriend after her arrival in Hong Kong. She lived with him for the past 3 years. Her boyfriend is however now remanded in custody for a drug trafficking offence. Being a torture claimant and asylum seeker, the defendant is not allowed to work. She is provided with food and HK$1,200 a month as rental allowance. Mitigation 9.According to Mr. Powner, the defendant had never abused drugs when she was in Tanzania. However, after she had met her current boyfriend who was a drug trafficker, he introduced her to drugs and provided her with free supplies. The defendant then started to consume ice and heroin and became addicted. She did not and could not stop using drugs despite the presence of psychotic symptoms. She also became a regular drinker of alcohol. Mr. Powner stresses that the defendant would not have committed the offence but for the fact that she was under the influence of drugs at the time of the offence. 10.On the circumstances of the offence, Mr. Powner submits that the defendant and the victim were in fact friends. They did business together on cosmetics and handbags. The victim owed the defendant $5,000 over business. The victim had promised and arranged to repay the money that evening after the victim had finished work. However, at the time of the offence, the defendant had a psychological and uncontrollable craving for drugs, but she did not have the money to buy drugs as her boyfriend was not there. The defendant therefore went to the laundry shop to get money from the victim at about 6 p.m. instead of waiting until 10 p.m. when the laundry shop would be closed. Mr. Powner says that the defendant did not remember she had taken a knife to the shop but she accepted what the witnesses had said was true. The defendant took the victim’s mobile phone and sold it for an amount which she did not recall but which was just sufficient for her to buy the next dose of drugs. Mr. Powner submits that if the defendant could have waited a little longer for the victim to repay money to her, she would never have been before this Court, but she just could not wait due to her uncontrollable craving for drugs. 11.To support his submissions, Mr. Powner produces 3 psychiatric reports on the defendant which were prepared by Dr. Kwan Man Man, Dr. Stanley Yip and Dr. Choi Wing kit. 12.The report prepared by Dr. Kwan shows that the defendant was admitted into Kowloon Hospital Psychiatric Unit on 16 February 2013. The defendant reported that she had daily regular use of ice, and that she heard voices and believed she had been followed and humiliated by friends when these did not occur. She was sent to Queen Elizabeth Hospital for her poor mental condition and was observed to have self-harm gesture during her stay. She was later transferred to Kowloon Hospital for further care. She was diagnosed to have mental and behavioral disorder due to use of stimulants including caffeine, and acute intoxication. After her mental condition had gradually improved, she was discharged from hospital on 27 February 2013, but she did not attend follow-up appointment. 13.The report prepared by Dr. Yip shows that due to her drug addiction, the defendant reported to have psychological craving, uncontrolled use with continual use of drugs despite the presence of psychotic symptoms. According to Dr. Yip, the defendant had admitted to have emotional distress and behavioural act-out influenced by illicit drug use such as breaking television at home when she was harbouring referential delusions from television programmes, and she was not willing to go out and was expressing paranoia towards people on the street. Mr. Powner adds that although it was not mentioned in the psychiatric report, the defendant’s mental problem had caused her to walk naked in the street when she felt that there was a fire at home when that was not true, and the fact that she had walked naked in public on several occasions prior to the day of offence had been confirmed by the laundry shop owner and the shopkeeper who reported this case to the police. Mr. Powner further says that the defendant had in fact also walked naked on the same day of the offence. The defendant had also reported to Dr. Yip that she had become a regular drinker of whisky for one year. Dr. Yip opined that the defendant was suffering from “alcohol and stimulant intoxication during the offence with a background of mental and behavioural disorders due to use of other stimulants, alcohol, harmful use”. 14.Dr. Choi also opined that the defendant had problems with illicit drugs and that she had a history of drug-induced psychosis. 15.As to the offender herself, Mr. Powner stresses that the defendant is genuinely remorseful. Mr. Powner points out that the victim is a missing witness but the defendant does not run any technical defence that might have been open to the defence due to her absence. The defendant has also written letters of apology to the victim and the Court to ask for forgiveness. She promises not to touch drugs again. She pleads guilty in court. She has been assisted by Father Franco Mella who submits a letter to plead for leniency for the defendant. Reasons for sentence 16.This was an armed robbery without firearms. For an offence of this kind, the Court of Appeal laid down sentencing guidelines in the case of Mo Kwong Sang v The Queen [1]. According to these guidelines, the appropriate sentence in an ordinary case of armed robbery where the offender carried a knife which he or she displayed to the victim should be 5 years’ imprisonment after trial. 17.In the present case, in light of the 3 psychiatric reports, the fact that the laundry shop owner and the shopkeeper had seen the defendant lingering around in the neighbourhood of the offence location naked on several occasions prior to the offence, and the submission that the defendant would not have committed the present offence but for her uncontrollable craving for drugs because the victim would have repaid a $5,000 debt to her about 4 hours later if the defendant had not committed this offence (an allegation of fact which is not contradicted, and is unlikely to be contradicted because the victim is a missing witness in this case), I am prepared to accept Dr. Yip’s opinion that the defendant was “suffering from alcohol and stimulant intoxication during the offence with a background of mental and behavioural disorders due to use of other stimulants, alcohol, harmful use” , and I will sentence the defendant on this basis. 18.Both Dr. Yip and Dr. Choi are of the opinion that once the defendant stayed in a drug-free environment, she has become mentally stable, calm and composed without displaying any psychiatric symptoms. They do not think inpatient treatment is necessary for the defendant. It is therefore not necessary to consider making a hospital order. 19.Although I accept Dr. Yip’s opinion, it cannot be denied that the mental and behavioural disorder suffered by the defendant was brought about by her voluntary and prolonged consumption of drugs and/or alcohol. Furthermore, she had pointed a knife at the victim which was not behaviour acceptable in this society. In my view, she must accept responsibility and punishment for her criminal behaviour, even though the sentence to be imposed upon her can be lower than the usual case on the ground that her culpability in the offence was reduced by her mental condition. Balancing all the factors, I am of the view that the defendant still has to go to prison, but the starting point of the prison term can be lower than that laid down in the case of Mo Kwong Sang. 20.Having considered all circumstances of this case, I am of the view that a starting point of 4 years’ imprisonment is appropriate. 21.I will not adjust the starting point upward on the ground that the defendant has a criminal record. The defendant’s past offences appear to be minor. In any event, this is her first conviction of robbery. 22.As to mitigating factor, the defendant pleads guilty. Her guilty plea is particularly valuable because the victim is now missing and will not be able to give evidence for the prosecution. I accept that credit should be given to the defendant for not running a missing witness defence. To say the least, although the laundry shop owner and the shopkeeper of the shop nearly could testify to the defendant pointing a knife at the victim and taking away the mobile phone from the reception counter, the victim’s evidence was still required to prove the ownership of the mobile phone, or to rebut any allegation that might be falsely raised by the defendant. For this reason, I am of the view that the defendant is entitled to a discount of sentence higher than the usual one-third discount. I am of the view that a discount of 40% is appropriate. 23.Other than the defendant’s guilty plea, I find no other factor that can reduce the sentence further. 24.For these reasons, the defendant is sentenced to serve a term of imprisonment for 28 months and 24 days.
[1] [1981] HKLR 610. |