HKSAR v. Tse Kwok Cheong

HCCC 254/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 254 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendantpleaded guilty to one charge of robbery, contrary to section 10 of the Theft Ordinance, Cap 210.

The facts reveal that the defendant robbed a lone woman aged 24 at the small hours of the morning. He came up from behind and applied a wet towel smelt of chemicals to cover her mouth and nose. He told her not to scream as all he wanted was money. As a result she handed to him her Samsung mobile phone which was worth around $4,700 when new.

The defendant continued to cover her mouth and nose and made her walk to a park nearby and ordered her to squat and not look at him whist he fled. The defendant was arrested a few days later and admitted to have robbed the victim and that the stolen phone was sold already.

He further admitted to have purchased a bottle of chloroform to facilitate his robbing as he had owed debt to a finance company. Enquiries with a hardware shop where the defendant had made the purchase revealed that only glue was sold instead as the shop did not sell chloroform.

The clothing worn by the defendant at the time of the robbery were found with a presence of dichloromethane instead of chloroform. Dichloromethane, though much less toxic, is not completely risk-free as it can cause irritation to eye, mouth, nose, central nervous depression including drowsiness and coma, and can even cause arrhythmias and heart attack to people with pre-existing conditions. However, this less toxic nature would explain why the victim felt no dizziness and did not notice any discomfort from the chemical smell.

The defendant is aged 33, single with a clear criminal record. Defence counsel had quite fairly and properly drawn to my attention of a binding over order imposed on him for two years on 10 December 2012 and the present offence happened before the binding over order expires.

However, bearing in mind that the present offence is serious and that the defendant would be receiving a sentence which would reflect its severity and its culpability, I am not going to do anything about the breach of binding over, and for the purpose of his sentencing I will treat him as having a clear record.

Counsel told me that the defendant, after completing Form 5, had maintained stable employment in order to support his irresponsible father. Previously a delivery worker, he was unemployed at the time of the offence. I was told that the offence was committed out of desperation as his father owed debts to finance institutions.

By pleading guilty at the earliest possible instance, he showed genuine remorse for his misdeeds, and by his letter in mitigation he offered his unreserved apology to the victim and promises to be a law-abiding citizen in the future.

In sentencing the defendant I have taken into account the facts of the present case, mitigation advanced on his behalf by his counsel and the relevant authorities. I have also taken into account his guilty plea and his cooperation with the police.

The Mo Kwong San guidelines are not directly relevant to the present case as the courts are not inclined to view chemicals as dangerous weapons.

I refer myself to the case of HKSAR v Cheung Tak Wa CACC 305/2010 which shares some similar features with the present case. In that case the victim was a sex worker who was alone in her premises at night. The 1st defendant in that case blew fumes from the chloroform towards her, and when she struggled he poured chloroform over her face.

The Court of Appeal said this:

“It is important to consider the illicit administration of chloroform posed a risk to health and even life in the adverse consequence to the respiratory and cardiac systems. By contrast, D1’s actions did not in fact expose the victim to the more serious consequence that follow inhalation of chloroform. The bizarre circumstances of the administration of the chloroform, notwithstanding that the application of a corrosive fluid to the victim was serious, rendered D1’s culpability less than had he formed the victim to inhale it.”

The Court of Appeal in that case was of the view that for the robbery charge a starting point of 10 years was appropriate.

Although in the present case dichloromethane instead of chloroform was used, it was sheer luck that the victim did not suffer the more serious injuries.

Throughout the incident, the defendant had thought and intended that chloroform was to be used to overpower the victim. Unlike the case of Cheung Tak Wa, the defendant had forced the victim to inhale what he thought was chloroform, and even on completion of the robbery after the mobile phone was handed over he continued to cover the victim’s nose and mouth with a chemical to make her walk to a park which enabled him to make good his escape. That is an aggravating feature.

I am of the view that for the facts of the present case a starting point of 9 years’ imprisonment is appropriate. For his guilty plea and cooperation with the police, I shall give him the full one-third discount. He is sentenced to 6 years’ imprisonment.