HKSAR v. Chan Wing Hei

[English Translation – 英譯本]

HCCC 405/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 405 OF 2015

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

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COURT:

The defendant pleaded guilty to one count of robbery before a magistrate and was committed to the Court of First Instance, High Court for sentence.

In sentencing, I have considered the whole circumstances of the case including its nature and facts, the defendant’s personal background and what the defence counsel has said in mitigation.

The facts of the case may be summarised as follows. At around 3:30 a.m. on 7 May 2015, two women both in their fifties (Madam Lam and Madam Law) were on their way to work. When they walked past Tsuen Wan Ambulance Depot, Madam Lam’s head was struck by a hard object by someone at her back. She turned around and saw two men behind her, one of them being the defendant. The defendant was holding a metal rod like object and he hit Madam Lam’s head two to three times successively causing her head to bleed. The two men then came to the front of the two female victims and the defendant further hit Madam Lam with the metal rod and grabbed her reusable bag which contained a bottle of water and a bag. The defendant also hit Madam Law’s left arm and shoulder with a metal rod. Amid the confusion, Madam Law’s body bumped against the external wall of the Ambulance Depot and the defendant also snatched away her shoulder bag which contained Madam Law’s wallet, her identity card, Home Visit Permit, Octopus card, bankcards, passbooks, keys and cash 900 dollars plus.

An off-duty police officer, who happened to be driving in the area, witnessed the incident. He got off his car and chased after the two robbers. After some chasing, he caught the defendant at the entrance of Luk Yeung Sun Chuen carpark. The other robber, however, escaped with the stolen properties of the two victims.

After the defendant was arrested, a cutter and a mobile phone were found in his right trousers’ pocket upon search. Under caution, the defendant said, “Ah Sir, give me a chance. I have nothing to do and have no money, that’s why I found “Fat Chai” and took out a hammer and a cutter at home to rob them.” The police found a metal rod which was the handle of a hammer and a head of a hammer at the pavement outside the Ambulance Depot. The stolen properties of the two female victims were later found at a flowerbed in Luk Yeung Sun Chuen.

Madam Lam suffered a 2-cm laceration to her scalp but her skull was not fractured. Madam Law suffered bruising to her right forehead, abrasion to her lips, left arm and left chest wall, and tenderness to her left arm and left shoulder. She did not have any bone fracture.

The defendant is now 31 years of age. He is single and lives with his parents. He completed Form three education and had worked as a transportation worker. He was unemployed at the time of his arrest. He has 8 previous convictions and many of them related to dangerous drug offences. He had been sent to Rehabilitation Centre and DATC and was once sentenced to a 14 days’ imprisonment. His first conviction was in 2002. He was sentenced to a CSO order for a duration of 90 hours for one charge of robbery. His last conviction was in August 2015. He was sentenced to undergo treatment in Siu Lam Psychiatric Centre for a period of three months for two charges of criminal damage. The date of offence in this case was earlier than the date of conviction in the case of criminal damage.

Counsel for the defendant, Mr Yu, submitted in mitigation that the defendant was the only child of the family and he had been spoiled. He was too dependent. The defendant was fond of sports but he did not do well at school and was unable to advance to Form four. Then he wandered around ball courts and billiard parlours and mingled with persons of dubious character. The defendant once ran a gift shop but closed it down later when he could not afford the high rental. Later he even got addicted to dangerous drugs. Though the defendant is not a first offender, he is genuinely remorseful for this incident and he also wrote a letter to express his determination to turn over a new leaf. Mr Yu also stressed that the defendant had pleaded guilty at the first available opportunity.

The nature of this case is serious. The defendant, together with another man, robbed two women, who were not young, in the early hours of the morning. He struck a woman’s head several times with a hard object. It was fortunate that she did not suffer very serious injuries. The defendant also hit another woman’s arm with the hard object and in the incident, the woman bumped against the wall and suffered multiple injuries on her body. I am of the view that considering the facts of this case, the tariffs mentioned respectively in the two cases of Mo Kwong Sang v The Queen [1981] HKLR 610 and SJ v Ma Ping Wah CAAR 1/2000 are applicable.

Though Madam Lam did not suffer very serious injuries and the weapon got damaged very soon after the attack and it disintegrated into a metal rod from a hammer like object, it was still a weapon that could cause harm to the brain of the person who was attacked. The defendant struck Madam Lam’s head more than once with the hard object and such vicious conduct must be severely punished. The defendant also attacked Madam Law with the metal rod. Though Madam Law’s head was not hit, the incident caused her to suffer multiple injuries on her body. The court also has to take into account the fact that the defendant committed robbery in the early hours of the morning with another person.

Considering the incident involving Madam Lam alone, a starting point of 8½ years is appropriate and considering the incident involving Madam Law, a starting point of at least 6 years is called for.

The defendant was charged with only one offence, yet the incident involved two victims who were attacked and robbed respectively. I have taken into account the sentencing principle and factor referred to by the Court of Appeal in the case of HKSAR v Ngai Yiu Ching (CACC 107/2011), which states that attacking and robbing two people carries greater culpability. I am of the view that only a starting point of 9 ½ years can adequately reflect the seriousness of this case.

Counsel for the defendant, Mr Yu, informed the court that the defendant is mentally unwell and is now receiving treatment. Though the defendant’s mental state did not affect his ability to commit this offence and culpability in this case, Mr Yu had urged the court to call for a psychiatric report before sentencing. I agreed and ordered for such a report.

The report revealed that the defendant had received psychiatric treatment since 2013 due to auditory hallucination and persecution paranoia and his condition was probably caused by abuse of drugs. After his arrest this time, he was also detained in a psychiatric centre. The defendant has all along been on medication and his condition has improved. The defendant told the doctor that he had consumed some dangerous drugs prior to the case and he heard a voice making a mockery of him and telling him to do it, so he took out a metal pipe and a cutter; went out together with his friend and decided to commit robbery.

The defendant decided to commit robbery consciously and out of his free will, which is not disputed by the defence. However, the mental health condition reduced his culpability and for this, I think a further discount of 7 months can be given to the defendant. Since the defendant pleaded guilty, he is entitled to a one-third discount in his sentence.

Defendant, please stand up. For the above reasons, I sentence you to 5 years and 9 months’ imprisonment.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law.