HKSAR v. Yum Sau Fong

HCCC 19/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 19 OF 2014

_______________

Before: Hon Zervos J in Court

Date of Hearing: 15 August and 30 September 2014

Date of Reasons for Sentence: 30 September 2014

_______________

_______________

1.The defendant has pleaded guilty to the two counts on the amended indictment of robbery (Count 1) and theft (Count 2).

2.The particulars of the offences in relation to Count 1 were that on 10 July 2013, the defendant robbed a bank teller of the Chong Hing Bank at Choi Ming Shopping Centre, King Ling Road, Tseung Kwan O of $7,480 cash; and in relation to Count 2 were that on the same day, the defendant stole $23,500 cash belonging to the Bank of East Asia at Metro Town Shopping Mall, King Ling Road, Tseung Kwan O.

3.The general circumstances in which the defendant committed the two offences were as follows.  On 10 July 2013, at around 9:07 am, she went to the Chong Hing Bank at Tseung Kwan O.  She was wearing a surgical mask and a fisherman’s hat.  She approached a bank teller and handed her a piece of paper on which was written, “Need $100 thousand, pay quickly”.  At the same time she pointed a carving pen at her.  I have viewed the carving pen which is better described as a sculptor’s instrument. It has a very small blade and is in the shape of a pen.  The bank teller was scared and pressed an alarm button.  The bank teller collected what money she had and counted it.  She passed $7,480 cash to her.  Throughout this time the defendant was pointing the carving pen at her, urging her to hurry up.  On the same day, at around 4:20 pm, the defendant went to the Bank of East Asia at Tseung Kwan O, and joined a queue for bank teller service.  She was wearing two surgical masks and a fisherman’s hat.  A member of staff observed her behaving suspiciously and alerted security staff of the shopping mall.  Like before, she approached a bank teller and handed her a piece of paper on which was written, “Need $50 thousand, pay quickly”.  The bank teller was scared and pressed the alarm button under her desk.  She counted what money she had and passed to the defendant $23,500 cash.  She did not notice if the defendant had or displayed any weapon.  At this time, two security guards intercepted the defendant who tried to run away.  A struggle ensued outside the bank until the defendant was finally restrained.  One of the guards sustained minor injuries to his back and hand.  During the struggle, the defendant dropped two surgical masks, a fisherman’s hat, a carving pen and a bunch of keys.

4.The defendant was arrested by police and admitted under caution that she knew it was wrong to rob.  She said she disposed of the money that she robbed in the morning in a rubbish bin at Mongkok.  She said she went to the other bank because she did not have money.  The police seized from her right trousers’ pocket a knife of 23 cm in length with a 11.5 cm long blade in a sheath and from the other pocket a note on which was written, “Need $40 thousand, pay quickly” and a surgical mask.  The carving pen was also seized which I have already described but its physical features were 11.5 cm in length with a 0.5 cm long pointed blade.  In both instances, the bank teller was separated and protected from a customer by a glass panel.  There was no or little risk of any physical contact with a customer.

5.The defendant admitted to the police that she wrote the three demand notes at home; that she robbed the first bank and disposed of the money that she got in a rubbish bin at Mongkok because she thought it was wrong; and that she stole from the second bank when she produced a note demanding the money.  She also said that she had a psychiatric problem and carried the army knife with the intent to commit suicide.

6.The defendant has had mental health problems in the past and has undergone psychiatric evaluation for the purpose of assessing her condition and background in sentencing her for these two offences.  Two psychiatric reports have been submitted to the court.  The psychiatrists are generally in agreement with their diagnosis of the defendant.  She is 41 years of age with two teenage children.  She lived in a public housing unit and was unemployed.  The defendant’s husband left her shortly prior to her committing the two offences.  She has had a number of personal problems in the past and suffered from Adjustment Disorder with mixed Anxiety and Depressed Mood.  One of the psychiatrists, who had been treating her, concluded that her marriage breakdown exacerbated her mental health condition and that she was suffering from major depressive disorder at the time she committed the offences.  It is significant that she has not been in trouble with the law prior to these two offences and that her conduct on the day was an episode in her unstable behaviour and mental problems.  Her treating psychiatrist basically explained that she had a mental collapse at the time of the offences, being a culmination of past mental and personal problems and issues, and that her conduct involved her crying out for help and punishing herself.  This is supported by the letters submitted to me by her family members who have described the defendant’s behaviour and deterioration over the years.

7.The leading case setting tariffs after trial for robbery cases is R v Mo Kwong Sang [1981] HKLR 610.  The Court of Appeal suggested that an appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he or she displayed to the victim, should normally be a term of imprisonment of 5 years, which would be increased to 6 years if it also involved an invasion of private premises and to seven years if it further involved any physical violence on a victim.  The suggested sentences should be subject to an appropriate increase for any other aggravating factors.

8.I have borne these guidelines and other general principles relating to sentencing in mind in sentencing the defendant.  She is a tragic figure who has experienced a number of personal problems and crises in her life.  It appears that she felt neglected as a child and left school at an early age.  She initially worked in retail but in the last 10 years has been unable to hold a job.  She got married when she was a teenager and her husband had left her just prior to her committing these two offences.  It had been a happy marriage and her husband leaving her had a devastating effect on her.  She has two teenage children who lived with her in a public housing unit. She had experimented with drugs and suffered from mental health problems over the last 10 years.  As confirmed by the psychiatric evaluation, she suffers from depression. She also had a gambling addiction in the past which she has now gotten over but in the process it has taken its toll on her relationships with family members.  As I have mentioned, prior to these two offences, she had not been in trouble with the law.  I will treat the events on 10 July 2013 as a serious lapse of judgment prompted by the culmination of personal problems and crises, in particular the breakdown of her marriage.  This does not excuse her wrongdoing for which she should be punished but appropriate consideration should be given to the circumstances leading to and surrounding the offences she has committed and to her personal circumstances and background.

9.This is an unusual case and I accept that the defendant has behaved out of character and in a state of depression.  These were not sophisticated robberies and I agree with the submissions of Ms Diane Crebbin, counsel for the defendant, that in all the circumstances the defendant should be treated leniently.  She has had her family rally behind her in a strong display of support and she has shown significant improvement whilst imprisoned awaiting sentence of this case.

10.I am taking the exceptional course in being as lenient as I can in sentencing the defendant given her exceptional circumstances and background.  On Count 1, I impose a starting point of 4 years and 9 months’ imprisonment which I reduce by one third for her plea of guilty to 3 years and 2 months’ imprisonment. On Count 2, I impose a starting point of 4 years imprisonment which I reduced by one third to 2 years and 8 months’ imprisonment.  Taking into account the totality principle, I will make 4 months of the sentence on Count 2 consecutive to the sentence on Count 1.  Accordingly, the defendant is sentenced to 3 years and 6 months’ imprisonment.

Mr Edward Laskey, counsel on fiat, for HKSAR

Ms Diane Crebbin, instructed by Tang Tso & Lau, assigned by the Director of Legal Aid, for the defendant