HKSAR v. Mak Chiu Yin

DCCC 89/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 89 OF 2015

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REASONS FOR SENTENCE

1.Mak Chiu Yin you have pleaded guilty to one charge of attempted robbery, contrary to section 10 of the Theft Ordinance, Chapter 210 and section 159G of the Crimes Ordinance, Chapter 200.

2.In summary at around 1253 hours on the 21 November last year you went to the Wing Lung Bank at Hing Tat Mansion, No. 339 Ngau Tau Kok Road in Sau Mau Ping. Although you had no account with the bank you queued up in line and handed to the teller a note saying “Give me thirty thousand, quick!”  When you were asked which account you would like to withdraw the money from you pointed at the drawer and said to the teller “Drawer, quick”. 

3.The teller perceiving this was a robbery became frightened and without saying anything looked at one of her colleagues.  When you repeated “Drawer, quick” the colleague covertly pressed the security alarm to alert the security control centre.  After repeating “Drawer, quick” for a third time the teller told you there was insufficient money to give you.  On hearing this you left the bank before the police arrived. 

4.Police investigation revealed your identity leading to your arrest on the 4 December. Under caution and in a subsequent video interview you admitted that you decided to rob a bank as you were in need of money. 

5.In passing sentence I have carefully considered everything said on your behalf by Mr Lau together with the content of the psychiatric and psychological reports and the mitigation letters submitted to court. 

6.No knife or weapon having been used the proper basis for sentence is that which is appropriate for an unarmed robbery.  The starting point for an ordinary case of unarmed robbery is generally no more than 4 years imprisonment (see for example R v Yau Kwok Tung [1987] HKLR 782 and HKSAR v Ting Chiu[2003] 3 HKLRD 378). 

7.This in my view is not an ordinary unarmed robbery.  The target of the robbery was a bank.  Robbery of banks must be deterred.  On the other hand I take into account that the offence, as aptly described by Mr Lau, was a half-hearted robbery the execution of which was rather amateurish; the teller was never at risk of any physical harm; the sum of $30,000 is not, as described in some cases, “high stakes”; there has been no loss to the bank; the whole incident lasted less than 45 seconds as seen on the CCTV played in court; and that you can be regarded as having a clear record having only one minor conviction over 30 years ago. 

8.I am satisfied in the circumstances the proper starting point after trial is 4 years imprisonment.  Giving you full credit for your plea of guilty reduces the sentence to 2 years and 8 months imprisonment. 

Mental disorder

9.The psychiatric and psychological reports show that you have suffered from mental illness for over five years with two admissions to psychiatric hospitals.  The psychiatrist Dr Lui is of the opinion you suffer from mood disorder (see paragraphs 4 & 7-8 of the psychiatric report).  The clinical psychologist W.L. Li is of the opinion that you have symptoms of bipolar disorder (see paragraphs 9, 10 & 20-24 of the psychological report).  Mr Lau asks that a reduction in sentence should be given on account of your mental illness. 

10.In HKSAR v Chiu Peng, Richard [2002] 1 HKC 401 the Court of Appeal accepted that a court may properly allow a discount in sentence where a defendant is suffering from mental illness which played a part in the commission of the offence.  The court said the justification for a discount in sentence by reason of mental illness was:

“…as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind. He knew that it was wrong to commit the crime, but he did not appreciate that the commission was as serious as it was: the degree of culpability was thus lessened.”

11.Chiu Peng, Richard was cited in HKSAR v Chen Xuehui HCCC 19/2012 where the court reduced the sentence imposed after trial where the defendant also suffered from Bipolar Affective Disorder displayed florid symptoms at the time of the offence.  McMahon DHCJ in Chen Xuehui said that in determining whether the illness has affected one’s culpability for the offence requires an assessment of the nature and severity of the illness and an appreciation of the relevance of its symptoms to the commission of the offence. 

12.You told the clinical psychologist that you committed the offence because you believed that God would provide for you in the form of withdrawing money from the bank and that at the time you did not think about the legal consequences of your action (see paragraphs 16 &17 of the psychological report). 

13.Although you made no mention to the police or in your mitigation letter that you were acting so as to solicit support from God I am prepared to take into account that at the time of the offence your mental illness may have played a part in the commission of the offence.  

14.The clinical psychologist states that you presented symptoms of bipolar disorder, which manifested as manic conditions often involving goal-directed and risk-taking behaviour.  When under stress your peculiar religious beliefs tend to dominate your solution to problems resulting in inappropriate behaviour. You were however conscious of your behaviour at the time of the offence (see paragraphs 18, 20 & 22 of the psychological report). 

15.In the circumstances I reduce your sentence by 6 months imprisonment to 2 years and 2 months.  You are convicted and sentenced to 2 years and 2 months imprisonment.