HKSAR v. Leung Kam Kwong

DCCC 1133/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1133 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of robbery, contrary to section 10 of the Theft Ordinance, Chapter 210, Laws of Hong Kong.

Facts

2.On 17 October 2016, at around 11:50 p.m., when the victim who was a lady aged 59 was walking past Kin Sang Estate Commercial Centre in Tuen Mun on her way home, the defendant suddenly appeared and pushed her onto the ground.  The victim shouted for help, but the defendant told her not to shout.  He then snatched the victim’s reusable shopping bag with various items belonging to the victim inside and fled in the direction of the wet market and the car park of Kin Sang Estate Commercial Centre.  The defendant was wearing the checkered clothing of a hospital patient at that time.

3.Meanwhile, a police constable in the vicinity saw the victim pointing at the defendant while shouting “robbery”. The constable immediately chased after the defendant.  Though the constable had lost sight of the defendant for some moment, he saw the defendant again when the defendant exited from the wet market of the Commercial Centre.  The constable noticed that the defendant no longer had with him the victim’s reusable shopping bag.  The constable kept on chasing after the defendant.  He saw the defendant board a taxi at the Leung Wan Street taxi stand.  The constable went up to open the left passenger door of the taxi and cautioned the defendant for a suspected robbery.  Under caution, the defendant said that he robbed because he had no money to feed himself.  He also said that he had already thrown away the stolen property inside the wet market but he could take the constable to where the property was.

4.When the defendant snatched away the victim’s reusable shopping bag, the bag contained the 9 items of property as particularized in the charge.  The bag and these items cost approximately $314.5.  When the defendant was fleeing the scene, he discarded in the street or inside the wet market some of the stolen property which were subsequently retrieved by the victim by herself or with the help of a passer-by.  The defendant had also put some of the stolen property inside the diaper he was wearing at that time, but he subsequently surrendered all of them to the police. All the stolen property was therefore recovered.

5.Around 12:10 a.m. on 18 October 2016, the police constable arrested the defendant for robbery.  Under caution, the defendant said that he robbed just because he had no money to feed himself. 

6.In a subsequent video recorded interview, the defendant admitted that he had robbed the female victim of her reusable shopping bag.

Criminal record

7.The defendant has 8 previous convictions involving a total of 11 charges, including a conviction of robbery in 1989 when he was sentenced to 12 months’ imprisonment.  His last conviction was in 1993 for the offences of assault occasion actual bodily harm and common assault.  A hospital order for 4 months was made against him on this occasion.

Personal and family background

8.The defendant is 51 years old.  He was born in Hong Kong.  He received education up to Form one only.  He was unemployed. His mother has already passed away.  His father is now 71 years old.  He has one elder brother, two elder sisters and one younger brother.  The defendant has been living in a private hostel called Ming Sum Home since July 2008.

Mitigation

9.Miss Lam, learned solicitor for the defendant, stressed that the defendant admitted his guilt to the police at the very first available opportunity and assisted the police in retrieving the stolen property.  The defendant had also pleaded guilty in court, thereby saving time and expenses.  She pointed out that there were a number of factors that made this offence not the worst of its kind, and these factors included the defendant was acting alone, no weapon was used or displayed in the course of the robbery, and no actual financial loss as well as injuries were caused to the victim.  Miss Lam asked for leniency to be extended to the defendant as much as possible.  She said that it was the defendant’s wish to take care of his elderly father upon his release from custody.

The mental condition of the defendant

10.Mr. Arthur, learned counsel on fiat for the prosecution, submitted to this Court a copy of a medical report dated 18 November 2016 on the mental condition of the defendant.  The report described the background and history of psychiatric problems of the defendant.  It was said that the defendant was diagnosed to be suffering from Hebephrenic Schizophrenia and Dissocial Personality Disorder.

11.Miss Lam informed me that the defendant disagreed with paragraph 5 of the report which stated that the defendant had multiple violence history since 1984.  On the other hand, Miss Lam confirmed that the defendant was not saying that his mental condition caused him to commit the present offence.  Miss Lam agreed that the defendant was staying in hospital after a buttock abscess drainage, and that his hospitalization was not due to his mental condition.  Miss Lam also confirmed that the defendant committed the offence because he needed money to feed himself as what he had told the police under caution, and that the offence was not caused by the defendant’s mental condition.

12.From the submission of Miss Lam, it is clear that the defendant’s mental history had little relevancy to his sentence.  I therefore do not call for an updated report on the defendant’s mental condition.  In fact, Miss Lam told me that the defendant did not want another report to be called for.  Needless to say, I shall ignore what had been stated in paragraph 5 of the medical report submitted to me.

Reasons for sentence

13.This was an unarmed robbery because the defendant did not use any weapon in the course of the robbery.  For an unarmed robbery, the usual sentencing option is one of imprisonment, and the sentence to be imposed after trial can be up to 4 years’ imprisonment: The Queen v Yau Kwok Tung [1]; HKSAR v Ting Chiu [2]; HKSAR v Lam Ka Hung (林家雄) [3].

14.I have considered carefully the facts of this case as well as the mitigation put forward by Miss Lam.  I can find no valid reason to depart from the sentencing norm.  I hold that a sentence of imprisonment is the only appropriate sentencing option.

15.Miss Lam has referred me to Yau Kwok Tung, Ting Chiu, HKSAR v Chan Sin Leung (陳善良)[4], and HKSAR v Ku Kwok Wai (古國偉) & Another[5] to assist me in the determination of the appropriate starting point. 

16.I have considered the cases submitted by Miss Lam.  I have also referred myself to some other cases.  I think the following cases are helpful.

17.In Lam Ka Hung, the victim was a 57 years old lady.  She was on her way home at about 7:17 p.m.  When she was walking along the corridor outside her home, her shoulder was pressed down by the appellant.  She then struggled with the appellant, and both of them fell onto the ground.  She sustained a minor abrasion to a finger.  The appellant snatched away her handbag.  The appellant was 31 years old with 11 previous convictions but none of them related to robbery or violence.  The Court of Appeal considered 4 years’ imprisonment to be the appropriate starting point.

18.In Ku Kwok Wai, shortly before 5 a.m., the two appellants aged 21 and 22 with clear record followed a 17 years’ old female student in the street and all of them went into the lift lobby of a building.  While the victim was waiting for the lift and speaking on her i-phone, one appellant stood at the entrance of the building to act as a lookout, while the other appellant pushed the victim in her back forcefully and snatched away her i-phone.  The sentencing judge adopted a starting point of 3 years and 3 months’ imprisonment.  Their appeals against sentence were dismissed.  The Court of Appeal made it clear that the young victim and others in her situation were entitled to go about their business safely in the public parts of residential buildings.

19.In HKSAR v Thapa Min Bahadur[6], the female victim aged 46 was walking in the street at 3:30 a.m. and checking her phone when she felt someone pulling her arm.  She turned around and saw a man pulling at the straps of her shoulder bag.  This man covered his face with a scarf, and the trial judge found it had been proved that this man was the appellant.  The victim shouted “help” and “robbery”, and struggled with the appellant while holding on to her bag.  The appellant desisted but snatched away her phone instead.  He fled but was subdued by passers-by.  He was 24 years old with one previous conviction of theft.  He was sentenced to 4 years’ imprisonment.  His appeal against sentence was dismissed. The Court of Appeal pointed out that the aggravating features of this case were that the appellant was preying on a single woman late at night, and that the victim was suffering from a terrifying experience when she was attacked from behind by a masked robber.  The use of a scarf to conceal identity also evidenced planning.

20.In the present case, it appears to me that the facts were similar to those in Ku Kok Wai except that the defendant was acting alone while there were two robbers in Ku Kok Wai.  In addition, the value of the property obtained by the defendant in this robbery, i.e. $314.5, should be lower than the i-phone belonging to the victim in Ku Kok Wai.  I also note that the victim did not sustain any injuries, and that all the stolen property had been recovered.  When all these factors are taken into account, I am of the view that the sentence to be imposed on the defendant should be lower than that in Ku Kok Wai.  The starting point adopted in Ku Kok Wai was of course lower than those adopted in Lam Ka Hung, and Thapa Min Bahadur.  For these reasons, I adopt a starting point of 3 years’ imprisonment.

21.I note that the defendant has one previous similar conviction for robbery and other convictions for offences of violence. However, all these convictions were before 1993 and he has not been convicted of any offence ever since.  I shall therefore disregard his criminal record and will not use it as a ground to increase his sentence.

22.As far as mitigating factors are concerned, the fact that the defendant needed money to feed himself was clearly not a ground of mitigation.  It is also clear that his criminal culpability was not reduced by his mental condition. 

23.The only valuable mitigating factor is the defendant’s guilty plea.  Since he has indicated his wish to plead guilty at the first available opportunity, he is entitled to be given the full one-third discount.  There is however no other ground to reduce the sentence further.

24.For these reasons, the defendant is sentenced to serve a term of two years’ imprisonment.