HKSAR v. Tse Man Lai

DCCC 191/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 191 OF 2017

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of robbery, and the facts admitted show that that offence occurred on what was in fact the morning of 17 December 2016 at a lift lobby in a building in residential premises in Tsz Wan Shan in Kowloon. The facts show that prior to the robbery taking place, the defendant had visited his brother on the 27th floor of that building, asking for money, and his brother had refused to lend him any and forced the defendant to leave. Shortly after that, at about 10.30 am, the defendant was found in the lift lobby of the building where the victim was working on the elevator.

2.About half an hour later, the victim felt the defendant push his hand on his shoulder and point the metal part of a trowel towards his right neck.  He turned around at that point, saw the defendant who asked him to get some money or take his money out, and the victim said that he did not have much money, and the defendant asked him for $100, and the victim was able to give him a $50 note from his wallet.  That was not enough, and another $100 was handed over.  While that was going on, the defendant was pointing the trowel towards the victim’s neck at all times.  

3.Around about that time, another resident of the building came into the lift lobby and witnessed the incident.  She called the police and in fact took photographs of the victim and the defendant.  While they were talking, the defendant held onto PW1 with the trowel at his neck. Eventually, the defendant and PW1 went down to the ground floor and walked out of the house into a common area. 

4.Around that time, the police arrived which is at 11.17 am.  So the matter had been going on since 11.10, some seven minutes.  They saw the defendant holding the money in his hand and holding onto PW1 with his other hand, and they separated them and found a trowel with a beige handle on the slope outside the building, and that was in fact the trowel that the victim recognised as the one he had been using while he was working.    

5.The defendant was arrested and said under caution immediately that he committed the offence as he needed money.

6.Fortunately, the victim did not suffer from any injuries and did not require medical treatment, and there is a CCTV record of what occurred.

7.As far as the defendant is concerned, he is aged 47 years, his education up to Secondary 1 in Hong Kong, said to be unemployed in his antecedent record at the time of his arrest, and he was living alone.  He is divorced and does have children but he has no contact with them any more. 

8.As far as his criminal record is concerned, he has some 20 previous occasions when he has been in court, some 34 charges for offences of violence such as assault, possession of offensive weapon and criminal intimidation and fighting, wounding and offences relating to drugs. More recently, the defendant has been sent to the drug addiction treatment centre in 2013 and 2014.

9.As far as the mitigation put forward today is concerned, so this is in fact the defendant’s first conviction said for robbery, he has a, well, certainly a record of consumption of drugs, and this has, I am told, led to emotional instability and psychiatric problems that led him to have to go to hospital.  He finds his behaviour change considerably after taking drugs.  He said in the early morning of that day, he had taken drugs and his self-control was accordingly weakened.  He visited his brother on the 27th floor.  His brother did not give him any money.  So then he committed this offence.  He picked up a trowel which was in the area.  So it was a weapon of opportunity, and the fact that he was in the lift lobby was again as a result of having been to see his brother earlier.

10.In mitigation, it is said that there was no injury, fortunately, to PW1, that the money taken was recovered, the offence was not thought out in any detail, and he surrendered voluntarily to the police when they arrived.  It is said that he says through his counsel that he in fact did not intend to hurt the victim but used it as a threat. 

11.As far as the starting point for sentence is concerned, this of course is a robbery in private premises.  The case that governs robberies where weapons of some kind are used is the case of Mo Kwong Sang v The Queen [1981] HKCA 62.  It is said that armed robberies cause terror to victims as well as loss of their possessions are common.  That was in 1981. The word “armed” in this judgment, they referred to knives and it said “and other dangerous weapons but not to firearms”.  It said:

“In an ordinary case of armed robbery where the accused was carrying a knife or other dangerous weapon which he displayed to the victim, the starting point for sentence should normally be 5 years. If such a robbery involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases), we suggest that a sentence of 6 years would be appropriate.”

And the question is: to what extent does that guideline apply to the case today?

12.It would appear that the defendant did arm himself with a weapon in this case and use it, pointing it at the victim, and took the victim down the lift, then out of the building presumably to assist in his escape, but certainly the victim would have felt at risk throughout that period, and it was a dangerous action carried out by this defendant.

13.It would appear to me that the weapon in question, although perhaps not as dangerous as knife, is certainly quite capable of causing injury and damage to the victim, and so the appropriate guideline would be Mo Kwong Sang.  Given that this was an offence that was carried out inside the private premises, particularly the lift lobby and into the lift, the guideline sentence would be in the region of 6 years’ imprisonment.  The starting point for sentence would be in the region of 6 years’ imprisonment.

14.In determining the starting point, I take into account the other factors that the defendant armed himself with a weapon of opportunity being a trowel, that it was an opportunistic offence and that no injury was caused.  I will in fact take a starting point in this case of 5 and a half years’ imprisonment.  That is 66 months.  The defendant has always indicated his plea of guilty to this offence.  So he is entitled to a one-third discount from that, leading to a sentence of 44 months’ imprisonment, 3 years and 8 months.