HKSAR v. Lam Chik Wai

DCCC 900/2017

[2018] HKDC 653

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 900 OF 2017

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Reasons for Sentence

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1.The defendant has pleaded guilty to two charges, one of assault with intent to rob, and one of theft.

2.It arises out of an occurrence that occurred at an amusement games centre in the afternoon of 29 July 2017.

3.The defendant approached a person called Mr Chan.  The defendant was holding an orange-coloured cutter in his hand at the time.  The defendant said that his big brother had lost his mobile phone, and requested to see Mr Chan’s phone.  It was not the phone, and Mr Chan was then recruited into trying to find this phone that had been supposedly lost.

4.The defendant then approached a man called Cheung and again said the same thing about his big brother had lost his phone. Mr Cheung refused this, and the defendant then kicked and punched him, and the defendant, on the facts, took out the cutter and pointed to Mr Cheung and insisted to look at the mobile phone.

5.Eventually a combination of Mr Chan and the staff of the games centre prevailed upon Mr Cheung to show his phone to the defendant.  When they did that, the defendant then snatched the mobile phone from Mr Cheung and fled away.

6.The defendant was then caught by the police after this.  The defendant said at the time, under caution, that he had been laughed at by Mr Cheung and had snatched his phone to teach him a lesson.

7.In any event, that is the background to this offence.

8.The defendant’s antecedents are that he is aged 37.  He is single.  He has an extensive criminal record:  last discharged from prison on 12 May 2016; 33 previous appearances in court between 1995 and 2018; he has been fined, put on probation, sentenced to drug addiction treatment centre, and sentenced to imprisonment, mainly short terms of imprisonment for offences such as theft, shoplifting, criminal intimidation, possession of an offensive weapon and the like.  Back in 2005, the defendant was convicted of robbery, receiving a sentence of 28 months’ imprisonment, and later, a sentence of 12 months’ imprisonment in 2005.

9.The defendant has a history of psychiatric, psychological and medical problems.  I have obtained reports on the defendant in respect of those aspects of his background.  He has been known to public mental health services since 2006.  He has psychiatric problems related to his use of illicit drugs.  This has resulted in schizophrenia and personality disorder.  He has been repeatedly hospitalised in psychiatric units, which is as a result of acute mental disturbance related to methamphetamine abuse.

10.It is believed that he now suffers from an independent psychotic disorder schizophrenia.  His last discharge was on 30 June 2016 from a mental hospital.  He suffers from residual auditory hallucinations.

11.The psychiatric report deals with his background. Their conclusion is that he does not require in-patient treatment, but requires psychiatric outpatient treatment at this point.

12.The psychological report assesses the defendant as having a high risk of reoffending.  That results out of his illness, his chronic substance abuse, anti-social and impulsive personality.

13.The background report sets out the same factors that are apparent in the medical reports.  The probation officer, I think quite rightly, points out what the defendant needs is a period of strict disciplinary and character training with compulsory psychiatric and psychological treatment in a confined setting, and both the defendant’s father and his stepmother share that view.

14.As far as sentencing, what can be done here? The most serious offence the defendant pleads guilty to out of the two is assault with intent to rob.  There is no guideline sentencing for this offence, but it is a serious offence and is akin to robbery.

15.I note that the most serious forms of unarmed robbery can lead to sentences of imprisonment, with a starting point of 4 years’ imprisonment, and sentencing for robbery offences can provide some guidance for the approach that should be taken for the 1st offence.

16.The 2nd offence of theft:  again, there is no guideline sentence for this particular kind of theft, but it does seem to be an integral part of the 1st offence.

17.The offending in this case appears to arise out of the defendant’s anti-social and impulsive character, and the defendant had armed himself with a cutter, no doubt to act as some form of intimidation to the unfortunate people that he was dealing with.

18.It is an aggravating factor, as is the fact the defendant in the past, back in 2003 and 2005, has committed offences of robbery and has since committed offences of theft and offences of intimidation and possession of an offensive weapon.

19.In mitigation it can be said that the defendant has pleaded guilty and has shown a desire to change, and the type of offending that we see in this case does come out of his mental illnesses.

20.On the 1st offence, what I am going to do is take a starting point at 3½ years’ imprisonment.  The aggravating factor of the defendant’s previous convictions for similar types of offences means that I am going to increase that by a further 3 months to what will be a total of 45 months’ imprisonment.

21.After deduction for the defendant’s plea of guilty, that will lead to a sentence on the 1st charge of 30 months’ imprisonment.

22.On the 2nd charge, I will take a starting point of 18 months’ imprisonment.  I will reduce that to 12 months’ imprisonment for the defendant’s plea of guilty.

23.The offences are effectively one transaction, so I will order that the sentences be served concurrently.

24.That is a total of 30 months’ imprisonment.

25.The defendant is in breach of a probation order which has now expired.  I am going to make no order in respect of that.