HKSAR v. Lam Leung Fan and Another

HCCC 354/2012
HCCC 417/2012
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 354 AND 417 OF 2012

-----------------

-----------------

---------------------------------

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

---------------------------------

COURT: The defendant in HCCC 354/2012, Lam Leung-fan, pleaded guilty before me to one count of robbery. He will be called D1.

The defendant in HCCC 417/2012, Ng Yu-chung, pleaded guilty before a magistrate to one charge of robbery and was committed to the Court of First Instance for sentence. He will be called D2.

The offence which the two defendants pleaded guilty to relates to the same incident in which they were alleged to have committed a robbery jointly and together with another two persons.

The robbery took place in the afternoon on 22 May 2012 in a residential flat at Shouson Hill Road. The victim, who was living with his parents and younger brother, was alone in the flat. He found the two defendants when he walked out of his bedroom. Both of them were wearing facemasks and labour gloves. D1 was wearing a McDonald’s staff uniform and D2 in a white shirt. D2 was prising the master bedroom door with a crowbar. D1 was in the sitting room, holding a hard stick-shaped object in his hand.

When D2 noticed the victim, he shouted to alert the other culprits and used his crowbar to hit the victim on his forearm and head twice. He then, together with D1, assaulted the victim with fists. The victim was then pushed into his bedroom, shoved into the bed and covered with a quilt. D2 then pressed the victim on his left shoulder to keep him down. At the same time, D1 left the bedroom. Inside the sitting room, there was another man holding a hard object in his hand. The master bedroom and the sitting room were then ransacked. Later, the victim’s room was ransacked as well.

Eventually, the two defendants fled, with one other man, with properties taken from the premises. The victim chased after them and called the police. The victim then saw yet another man running in front of the original three men. The two defendants were using a bedsheet to carry a metal safe they took from the victim’s flat, which was later dropped on the ground. The original three men boarded a car and left. The other man boarded a van and also left.

The car was later spotted by the police. D2 jumped out from the car and tried to flee. He was arrested. D1 and the other man also alighted and tried to flee. D1 was intercepted and arrested. The other man made good his escape.

Inside a shoulder bag carried by D2, items, including slightly more than $182,000 and two mobile phones, were found. Inside the car, items, including two screwdrivers, two watches, 12 pieces of gold plate and a chopper were found.

The victim suffered the following injuries: swelling and tenderness over the right forearm and erythema over right posterior neck.

The total value of property stolen from the flat was estimated to be around $440,000 and cash stolen is HK$530,000 and 6,000 renminbi.

The following items found in the car were taken also from the flat: the two wristwatches, 12 pieces of gold plate, a bedsheet and a chopper.

D1, Lam, is now 34 years of age. He has completed form 3 education and had worked as an air-conditioning and decoration technician. He is married and has a son studying at a primary school.

He does not have a clear record. He had been convicted on 10 previous occasions for a total of 17 offences which include three convictions for the offence of theft, one conviction for obtaining property by deception, convictions in relation to trafficking and possession of dangerous drug, and convictions of copyright offence. His last conviction was in April 2010. It was for two charges of trafficking in a dangerous drug for which he was sentenced to a total of 3 years and 8 months’ imprisonment. He was discharged on 5 April 2012. Soon after the discharge, he committed this offence.

D2, Ng, is 41 years of age. He has completed form 5 education and had worked as a lorry driver and transportation worker. He is single.

He also does not have a clear record. Indeed, he can be said to have an appalling record. He had been convicted on 11 previous occasions for a total of 16 offences which includes one conviction for robbery, four convictions for burglary-related offences, one conviction of handling stolen goods, convictions for possession of dangerous drug and convictions for offences of using unlawful force. He was discharged from prison on 7 March 2012 and the same as D1, he committed this offence soon afterwards.

Learned counsel for D1, Mr Leung, stressed the guilty plea of D1 and said that D1 had indicated his indication of plea at an early stage. He also highlighted that despite D1 has many previous convictions, none was in relation to robbery or burglary. He told the court that D1 is now remorseful and a letter written by D1 in which he indicated his remorse is produced. He also told the court that D1’s mother-in-law is suffering from cancer. He informed the court that the initial plan was only to steal and not robbery.

Learned counsel for D2, Mr Cheng, also stressed the guilty plea of D2 and that it was tendered at the earliest opportunity. He also said the plan was only to steal and force was used only when D2 became panicked when he was confronted by the victim. No strong force was used; D2 only intended to control the victim. It explains why the victim only suffered relatively minor injury. The item used was described as a crowbar. It was indeed a small item which has also been described as a screwdriver.

The chopper later found was indeed taken from the kitchen in the premises by D2 to try to open some boxes, in the course of which he hurt himself. When he fled, he wrapped up everything and it was in these circumstances that the chopper was taken away as well.

This was clearly a premeditated robbery with a significant degree of planning. The defendants targeted a flat in a luxurious residential area. The indication is that they were aiming at something substantial in value. Four persons were involved. There were two escape cars. The defendants were masked and one was equipped with a crowbar, or a screwdriver, and the other with a hard stick-shaped object. Each culprit was holding an item which could readily be used as an attacking weapon. The tools were indeed used by D2 to attack the victim.

When confronted with the victim, there was no hesitation to resort to force and although the victim did not suffer serious injuries, it is reasonable to think that a person in such circumstances would have experienced great fear. Even if the original plan was only to burgle the flat, D2 assaulted the victim when he appeared and D1 joined in. The victim was kept under control throughout. The defendants determined to carry on and indeed had ransacked the premises after force had been used on the victim.

The value of the properties taken was in the region of a million dollars. If not for the courage of the victim, the family would have suffered substantial real loss.

I have had regard to cases such as Mo Kwong Sang v The Queen [1981] HKLR 610, HKSAR v Chau Ping, CACC 2/2013, HKSAR v Wang Wei, CACC 446/2009, and HKSAR v Gu Guolin, CACC 25/2012. In all the circumstances, I am of the view that only the following starting points are sufficient to reflect the nature and seriousness of the case.

For D1, although he did not have a record of robbery, he did commit more than one dishonesty offence and committed this offence extremely shortly after his discharge from prison. An enhancement of about 6 months is required. In all the circumstances, I adopt an ultimate starting point of 9½ years.

For D2, similar considerations apply and indeed he had committed offences of robbery and burglary before. In my judgment, an enhancement in the region of 1 year is called for. Having considered the whole circumstances, I adopt an ultimate starting point of 10 years.

The two defendants pleaded guilty and each is entitled to a one-third discount for this reason. Having considered the whole circumstances, including mitigation submissions, I am of the view that this is the extent of discount each defendant is entitled to.

Defendants, please stand up.

D1, Lam Leung-fan, you are sentenced to 6 years and 4 months’ imprisonment for the offence you are convicted of.

D2, Ng Yu-chung, you are sentenced to 6 years and 8 months’ imprisonment for the offence you stand convicted of.