HKSAR v. Ngo the Manh

HCCC 439/2017

[2019] HKCFI 770

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 439 OF 2017

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

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COURT:

The defendant has pleaded guilty to an amended indictment. He faced two charges of robbery and pleaded guilty to Charge 1, with Charge 2 being left on the court file.

The defendant admitted that on 11 May 2017, at about 6.50 pm, he entered Flat E, 3rd Floor, No. 268 Hai Tan Street, Sham Shui Po, Kowloon. He entered by its unlocked rear door. The defendant found the house tenant, Mr Cheung, inside the premises. He grabbed a chopper from the kitchen and threatened the tenant. He told the tenant not to move. He grabbed his wallet and fled. He told the victim not to chase him. The victim made a police report immediately after.

The defendant admits that he took a bicycle from a passer-by not long after this robbery and rode away. That bicycle was the subject matter of Charge 2.

At about 11.55 pm on the same night, the defendant surrendered himself to Sham Shui Po Police Station. He admitted he had committed a robbery earlier on. The defendant’s appearance matched a wanted person’s report for that robbery.

The defendant was then taken by police officers to his bed space. He was a street sleeper. There, the police found some of the victim’s belongings as well as the chopper the defendant took from his kitchen. The defendant admitted under caution that he stole money to buy food out of momentary greed.

In a subsequent video-recorded interview, the defendant admitted that he entered the victim’s premises, hoping to steal money. He admitted he took the chopper from a table to threaten the man before stealing his wallet. He admitted that the chopper found by the police was that same chopper. The police subsequently found the defendant’s DNA on that chopper as well as his fingerprints.

The defendant made more than one video-recorded interview and in short, admitted that he committed the robbery, spent all the money and surrendered after having spent it all. His admissions and confessions are unequivocal.

Irrespective of whether he was under the influence of “Ice” at the time, those records of interview show he formed the intention to steal whilst brandishing a large chopper. What he says one year later to several psychiatrists is quite different.

Mitigation

The defendant is not a man with a clear record. In fact, he has an appalling record. He has 39 previous convictions that were obtained over 33 court appearances. His first conviction was in 1990, and his last, 2014. He has many drug-related convictions. That includes possession of dangerous drugs as well as trafficking in dangerous drugs. He has many convictions that relate to dishonesty including pickpocketing and burglary. This is his first robbery conviction.

The defendant is now 43 years old and was born in Vietnam. He entered Hong Kong illegally when he was 13 years old. His education stopped at primary school level. He is married, but his wife and daughter have emigrated to Sweden, leaving him to live here alone in Hong Kong. He was unemployed at the time of his arrest, sleeping on the streets and clearly had financial issues.

The defendant has a long history of drug abuse that included in the past heroin, cannabis, cocaine, ketamine and more recently methamphetamine. As a result of his substance abuse, he has been admitted into hospital three times in 1998, 2013 and 2017 respectively. It would appear from the medical reports that he not only had a methamphetamine addiction, but also alcohol dependency, with a history of drug-induced psychosis. He was last admitted to Kwai Chung Hospital in 2017 after he fell from a height whilst escaping from the police and then on that occasion he was diagnosed to have acute intoxication and a dependency on polysubstances. It is not made clear in the psychiatrist’s report whether he was actually being chased by the police or he thought he was being chased by the police.

I have seen psychiatrist reports that say his current mental condition is stable and he no longer requires psychiatric in-patient treatment. This is probably because he has had to abstain from drugs and alcohol since his remand in May 2017.

There are opinions in the psychiatrists’ reports that he may have been severely affected by drugs at the time of the commission of this offence. A drunken intent can, however, nonetheless be an intent. Having read the transcripts of the video-recorded interviews, I am left in little doubt that he knew what he was doing, and like one of the psychiatrists said, he wanted to be imprisoned. I am sure the reason he surrendered is not so much because he was remorseful but for his own ulterior motive.

In mitigation, I have heard from Mr Cheung who has said all he can say on behalf of the defendant. I am urged to consider a higher discount than the 20 per cent prescribed by the Court of Appeal for those who plead guilty on the first day of trial. He agrees there was no offer before the first day of trial to plead guilty to robbery but there were offers to plead guilty to lesser charges. Mr Cheung stresses the contents of the psychiatrists’ reports, both from the defence and the prosecution. They make this case more unusual and could, he submits, convince me to exercise my discretion.

However, the mental issues the defendant has developed over a long period of time are self-inflicted. He has been offered many opportunities to quit drugs through treatment from as far back as 1992, but clearly did not have the determination which has led to mental issues and self‑induced drug consequences.

I have also had today a letter from a social worker who also calls herself a friend of the defendant. She has explained how he has participated in a series of short documentary films. One in particular is about the lives of Vietnamese boat people who still remain in Hong Kong. She appears determined to help the defendant and she writes:

“When he is in a calm state of mind living in a shelter and has a full stomach, he is a kind and considerate person.”

I do hope that her determination will be matched by the defendants. He certainly has a friend in her and should not abuse that friendship. She wants to help the defendant when he is released and he should show the same determination to try and help himself.

I will take into account the fact that he did not enter the victim’s premises carrying a chopper but took it when he was confronted by the tenant. Having seen how many previous burglary convictions he has, he was more than likely intending to break in with the intention to steal but was inadvertently confronted by the victim. I accept he did not, in a premeditated fashion, carry the chopper to commit crimes.

In the R v Mo Kwong Sang [1981] HKLR 610, the Court of Appeal laid down guidelines for armed robberies. The appropriate sentence for an ordinary case of armed robbery where a knife or other dangerous weapon is carried and displayed is 5 years’ imprisonment. I am satisfied that the chopper was a dangerous weapon.

The Court of Appeal has also said that where that robbery involves the invasion of private premises like here, then a sentence of 6 years would be appropriate. That same authority also sets out what aggravating factors will lead to an increase in that starting point. I note that the defendant did threaten the victim in his own home whilst robbing him. He told him not to move nor chase him as he left.

Taking into account mitigation put forward and the facts of this case as well as all the medical reports, I will take a slightly lower starting point of 5 years and 9 months despite the threat uttered because of the fact the defendant did not bring the chopper to the premises.

Defendant, please stand up. In considering what discount the defendant is entitled to for his plea, I have referred myself to HKSAR v Ngo Van Nam & Others [2016] 5 HKLRD 1. This plea of guilty comes on the first day of trial and according to that authority and subject to the overriding discretion of the sentencing judge, the defendant is entitled to a discount of 20 per cent from the starting point taken for sentence. I find a 20 per cent discount appropriate. I do not see any reasons why I should depart from that guideline or exercise my discretion. I will reduce the starting point of 5 years and 9 months by 14 months. Therefore, the defendant is sentenced to 4 years and 7 months’ imprisonment for this robbery charge. Do you understand the sentence?

ACCUSED: I understand.