HKSAR v. Lai Ka Fai

HCCC 141/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 141 OF 2016

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

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

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

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

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

COURT: The defendant pleaded guilty to one charge of robbery on the first day scheduled for his trial. His case was committed to Court of First Instance on 18 March 2016.

The defendant, an ex-worker at the mah-jong school named in the particulars of the charge, broke into the school in the early hours of the morning with two other people. PW1, a staff who was performing night-watchman duties, tried to escape on seeing them but was caught and restrained and taken back into the school, tied up, gagged and blindfolded. The defendant and his accomplices stole three safes and left after 15 minutes.

The cash loss was around HK$1.2 million. Other various business documents and ledgers were never recovered.

Images of the robbery was captured by CCTV and the son of the owner of the mah-jong school recognised the defendant as a staff who used to work there.

The defendant is now aged 38, is married, although his counsel told me that he was separated from his wife and now has a stable girlfriend in Hong Kong.

He has 15 items of previous convictions, four of which related to offences of dishonesty. His last conviction was in July 2014; for two offences of burglary, he was sentenced to a total of 22 months’ imprisonment. He was last discharged from prison on 19 June 2015 and he committed the present offence some three months afterwards.

By way of mitigation, counsel for the defendant told me that the defendant committed this offence because his girlfriend, a heavy gambler, owed a loan-shark a huge amount of debt, and that this case did not involve any knives or offensive weapons, and the defendant, when arrested, had not received his share of the proceeds of the robbery at all.

In sentencing the defendant, I have taken into account the mitigation forwarded by his counsel and the contents of his handwritten letter.

This case has the following aggravating features:

(1) Involved more than one culprit.

(2) A planned and premeditated robbery suggested and planned by the defendant as an ex-employee of the mah-jong school who knew the access route into the premises.

(3) Involved the invasion of private premises at small hours.

The reason why I say the mah-jong school was private premises is that although it was opened for business during the day, it was locked up at night, during which the robbery happened.

(4) PW1 was manhandled; tied up, gagged and blindfolded.

(5) A substantial amount of cash was stolen and not recovered.

I wish to echo what was said by Zervos J in the case of HKSAR v Yang Xingyun [2016] 3 HKLRD 757:

“Just because no weapon was used in a robbery did not mean that the culprit should be treated more leniently for there might be other factors aggravating the robbery.”

I have also referred to the case of HKSAR v Sun Yu Hing [2011] 4 HKLRD 17 which was an armed robbery by an ex-employee with an accomplice and the Court of Appeal was of the view that a starting point of 8½ years is appropriate.

In the present case, I consider a starting point of 8 years to be appropriate and since this case was committed to the Court of First Instance before the Ngo Van Nam judgment, the defendant is entitled to the one-third discount and is sentenced to 64 months’ imprisonment, 5 years and 4 months.

This is the sentence that I pass.