HKSAR v. Tsang Tsz Lung

HCCC 373/2018

[2019] HKCFI 723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 373 OF 2018

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

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COURT:

Defendant, you pleaded guilty before a magistrate of a charge of robbery and were committed to the Court of First Instance for sentence.

Today, you pleaded again before me and stand convicted of the charge. In sentencing, I have considered the whole circumstances of the case including its nature and facts, your background and mitigation put forward on your behalf. The facts of the case which has been admitted by you, may be summarised as follows.

The events took place at around 6.30 am on 27 December 2015. The 45-year-old female victim just left her residence for work. When she reached No 3 Kam Lam Street in Mongkok, you walked towards her and suddenly bashed her head on the left once with a hard object in your hand. You snatched the victim’s cross-shoulder bag which contained renminbi 5,000, HK$1,500 and a mobile phone valued at HK$3,000.

The victim held onto her cross-shoulder bag, but you continued to grab it with force. As a result, the strap of the victim’s cross-shoulder bag broke. You took away the cross-shoulder bag and fled in the direction of Kam Fong Street. The victim chased you and shouted, “Snatching!” A male passerby, PW2, gave chase and struggled with you and tried to get back the victim’s cross-shoulder bag from you but in vain. You then continued to run with the victim’s cross-shoulder bag, but PW2 still chased after you. The victim followed you and PW2 from behind. When she reached the junction of Reclamation Street and Dundas Street, she found her cross-shoulder bag on the ground and saw PW2 holding onto you. You kept on struggling and eventually fled away from the scene. The victim picked up her cross-shoulder bag from the ground. Luckily for her, nothing was missing from her cross-shoulder bag.

When the police officers later arrived, they found a pair of glasses and a watch on the ground which was believed to be left by you during the struggle with PW2. The victim was later sent to the hospital for medical examination on the same date. She sustained head injury. Physical examination revealed a 3-cm-long laceration wound on her head. X-rays of her skull revealed no fracture. Her laceration wound was sutured up with six stitches. She was treated and discharged on the same day and was granted five days’ sick leave.

The seized glasses and the watch were later sent to the government laboratory for DNA examination by the police. Human DNA which could have been originated from you was found on the glasses frame. The DNA result, therefore, led to you being identified and subsequently arrested for the present case.

I was told that you are now 34 years of age. You were educated up to Form 1 level and after you have left school, you have worked as a salesperson. According to the antecedents statement, you are still single. You have a younger brother who is a student. Your father, around 64 years old, is a retired person, and your mother, around 50 years old, is a housewife.

In mitigation, your counsel explained to me that the reason why you committed the present offence was due to your addiction to the drugs. He said that you could not even remember what object you were using when you committed the offence and hit the female victim’s head. He produced a letter written by you in Chinese in which you have expressed your remorse and you indicated your desire to turn over a new leaf after serving the current sentence.

You are not a first-time offender. From 1994 to 2017, you have been brought before the courts in Hong Kong for no less than 15 occasions involving 17 convictions, including robbery, attempted robbery, theft, causing GBH, and wounding with intent to do GBH. Your last conviction, however, was in relation to trafficking in dangerous drugs, for which you were sentenced in the Court of First Instance to 14 years and 8 months’ imprisonment on 30 October 2017. You are currently still serving the sentence in Stanley Prison.

In the case of Secretary of Justice v Ma Ping Wah, CAAR 1/2000, His Lordship, Stuart-Moore, V-P said:

“It seems to us a matter of the most straightforward common sense that where a robber deliberately sets about his victim by striking a blow or, as in this case, blows to the victim’s head with a weapon which is capable of causing brain injury, this will be an aggravating factor. It is a particularly dangerous act.

However, in view of the evidence with which we have been provided, whilst we do not consider any general changes need to be made to the Mo Kwong Sang guidelines, we are satisfied that head bashing robberies are in a category of sufficient gravity to justify a particular band of guideline sentence which was not contemplated at the time when judgment was given in that case. In our judgment, the usual sentence to be imposed for such robberies, following a contested trial, where it is established that a deliberate blow to the head with a weapon capable of causing injury to the brain has been struck by the robber or the culprit who is intent on robbery, should not be less than 8 years’ imprisonment. This is not, of course, a strait-jacket, and there may be some offences where a lesser penalty can be imposed depending on all of the circumstances. Equally, depending on how severely the victim is injured, there will be other cases for which greatly increased sentences will be required.”

I have also had regard to other cases such as Mo Kwong Sang v The Queen [1981] HKLR 610. The sentence suggested in Secretary for Justice v Ma Ping Wah is not meant to be a strait-jacket as I have said. There is no doubt that the present case should be classified as a head bashing case. In my view, this type of offence is a vicious form of armed robbery in that the victim was hit on his or her head when he or she was totally unprepared or even unaware of the presence of the robber or in circumstances where such harmful attack is not even necessary to commit the offence.

In the present case, you were armed with a hard object which you surely were prepared to use to harm the female victim when you want to. In fact, you had used it and aimed it at the head of the victim, a very fragile part of her body and it was sheer luck that she did not suffer serious injuries. Your counsel during mitigation stressed that as the nature of the hard object was still unknown and because of the fact that the injuries to the victims is not serious, it is only a 3-cm laceration on her head, according to the facts, there is only a single blow or strike on her head and, perhaps, therefore, a less than 8 years’ imprisonment should be imposed on you.

Having considered all of the circumstances of this case and what was said by your counsel, it is clear that you armed yourself with a hard object and targeted a woman walking alone on the street whom you considered very easy prey. However, because of the relatively minor injuries suffered by the victim, I am prepared to impose a slightly less serious sentence on you, but in all the circumstances, I still consider that a sentence of 7 years and 9 months is appropriate.

Looking at your criminal records, although, you have in the past been convicted of two similar robbery convictions, those two convictions were already back in 2004, which is more than 14 years ago. Therefore, in the end, I decided not to enhance the sentence because of your similar records.

You pleaded guilty and, therefore, you are entitled to a one-third discount. Having considered the whole circumstances of the case, including what your counsel said on your behalf, I am of the view that this is the extent of discount that you are entitled to in this case and nothing else. After one-third discount, your sentence on this offence is one of 5 years and 4 months’ imprisonment.

But that is not the end of the matter. As I have said earlier, you are currently serving a sentence of 14 years and 8 months for trafficking in dangerous drugs. However, the principle of totality requires me to stand back and adjust my sentence in a way which properly takes into account of your pre-existing sentence. In so doing, I bear in mind that the current sentence that you are serving is a lengthy sentence. If I were to order the two sentences to run wholly consecutively, the total sentence would be in a total of 20 years.

However, the present offence was by itself a serious offence. It was also a totally separate and distinct offence which involved different criminality and, therefore, calls for separate and additional punishment. Even if I were to sentence these two offences together in the same time, I would still order you to serve an additional 4 years’ imprisonment for the present offence.

For these reasons, for the present offence, your sentence will be 5 years and 2 months’ imprisonment and I order that the 1 year and 2 months’ imprisonment be served concurrently with your current sentence.