HKSAR v. Lee Wai Yip, Ray

HCCC 393/2018

[2019] HKCFI 1747

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 393 OF 2018

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Reasons for Sentence

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The defendant has pleaded guilty to five counts of robbery at the Eastern Magistracy on 10 December 2018. He was committed to the Court of First Instance for sentence. This morning, the defendant came before me and confirmed his pleas and admission to the Summary of Facts and he was duly convicted as charged.

The five robberies were committed by the defendant on separate days between 21 February and 2 March 2018 at various districts in Hong Kong such as Causeway Bay, Mongkok, Hunghom and Tin Shui Wai.

On each occasion, the defendant was committing a mean type of theft by ruthlessly preying on a lone female victim and forcefully grabbing her bag. There was even an occasion when he was targeting on an elderly woman, that is Charge 5, and physically violent to the victim.

The Facts

The first robbery (Charge 1) occurred on 21 February 2018 in Causeway Bay when a 31-year-old woman was sitting in the driver’s seat of her private vehicle and had lowered the driver’s seat window. Suddenly, the defendant reached through the window and grabbed her right arm with his left hand. At that time, the victim was holding her mobile phone in her right hand. The defendant was holding a beer bottle in his right hand and he threatened the victim to hand over her money and handbag or he will hit her head. The victim told the defendant she did not have handbag or wallet with her. The defendant then snatched her mobile phone and fled. The mobile phone was valued at HK$7,000.

The second robbery (Charge 2) occurred on the next day, on 22 February 2018 when a 68-year-old woman walked past of a unit on a commercial building in Mongkok. The defendant pushed the victim on her shoulder, causing her to fall onto the ground. He then snatched the victim’s handbag and fled. The handbag was valued at HK$4,200. Inside the handbag were cash of HK$1,300, one wallet valued at HK$50, one Hong Kong ID card, one mainland travel permit, one Octopus card and one mobile phone valued at $999.

The third robbery (Charge 3) occurred five days later, on 27 February 2018, when a 26-year-old woman came out of an exit of Hunghom MTR Station and was followed by the defendant. He grabbed her neck from behind and dragged her backwards, which caused the victim to lose her balance and fell onto the ground. The defendant was trying to snatch the handbag of the victim but the victim put up a struggle and kept holding to her handbag firmly. During the struggle, defendant managed to open the handbag and reached inside the handbag. He snatched cash of RMB600, one medical card and one lipstick valued at HK$250 from the handbag and fled.

The fourth robbery (Charge 4) occurred two days later, on 1 March 2018, when this time a 63-year-old woman was inside a female toilet cubicle of a restaurant in a shopping centre in Hunghom. The female victim was hit by the door of the cubicle and fell. The defendant then took away the handbag which was hung on the hook inside the cubicle and fled. The victim gave chase but the defendant managed to escape via the fire exit. Inside the handbag was a rucksack valued HK$200. There were also cash HK$1,500 and one wallet valued at HK$150, one Hong Kong ID card and one mobile phone valued at $1,000.

The fifth and the last robbery occurred on only one day later on 2 March 2018, when an elderly 76-year-old woman was waiting for lift at the lift lobby of her residential building in Tin Shui Wai. Suddenly, the defendant grabbed her bag from behind and she fell to the ground. As the old lady was still holding onto her bag, she was dragged by the defendant while she was on the ground. She became exhausted and the defendant eventually grabbed her bag. He fled and inside the bag were cash of HK$3,000, one wallet valued at HK$6,000, one Hong Kong ID card, and one mobile phone and eight credit cards and ATM cards, an Octopus card and one mainland travel permit, one senior citizen card, two credit cards, two ATM cards and one resident card and one mobile phone valued at HK$1,000. The handbag was valued at HK$7,000.

The robberies cases were reported and the police officers analysed the CCTV footages in relation to the investigation of Charge 4 and they obtained the information that the culprit had got off a taxi near 142A Yee Kuk Street, Sham Shui Po.

On 2 March 2018, the police conducted an ambush in the vicinity and later the defendant was seen alighting a taxi and enter a residential unit where the defendant was subsequently arrested. He was first arrested in relation to the fourth robbery and later under caution admitted having committed all five robberies. He said he discarded all the items except for the cash which he had spent. In Charge 4, he also admitted using a nail clipper and threatened the victim during the course of the robbery. When he was arrested by the police, he had just committed Charge 5 and he took a taxi back to his residence in Sham Shui Po and as a result, luckily for the old lady, all the stolen properties of Charge 5 were recovered.

The Background and the Criminal Records of the Defendant

The defendant is now 47 years of age. He has indeed an appalling criminal record. He has 52 previous convictions, of which 34 are for offences similar to the one he has now pleaded guilty to. Since 1989, he has been convicted for offences of assault, burglary, blackmail, fighting, attempted theft from a vehicle, handling stolen goods, possession of drugs and in particular robbery on four occasions in 1998, 2005, 2008 and 2014. He was last discharged from prison in February 2017 for the sentences he served in relation to the 2014 robberies.

He is now currently serving a sentence of 8 months’ imprisonment, which is imposed in the West Kowloon Magistracy for his last two convictions on 20 February this year in relation to, firstly, possession of arms or ammunitions without a licence and, secondly, possession of Part I poison. (WKCC 170/2019).

The defendant was born and educated in Hong Kong until his primary education. Thereafter, he went to Taiwan to study secondary school there but he had only completed Form 2 education before he came back to Hong Kong. He was unemployed at the time of the arrest and had previously worked as a bartender and a decoration worker.

In mitigation, the defendant has submitted for my consideration two handwritten letters, one by himself, and the other by his girlfriend. In his own letter, the defendant had expressed regrets for what he had done and apologized to the victims for their loss and suffering in the robberies.

The defendant said he tried to find jobs after his release from prison in 2017 but was of no avail as his right finger was permanently injured whilst in prison and as a result he could only rely on public assistance.

In early 2018, his girlfriend was pregnant and the defendant foolishly decided to resort to committing the robberies again. Since he was arrested and remanded, the girlfriend had developed mental issues and suffered a miscarriage eventually due to emotional stress and depression, and for it, the defendant blamed himself for all these mishaps to his girlfriend and his baby. His girlfriend, in her letter, also blamed herself and still asked the court to be lenient to the defendant as in her eyes, the defendant was still a responsible husband.

Sentencing Considerations

In passing the sentence, I have taken into account the facts of the cases, the background and the criminal records of the defendant, as well as the authorities and the mitigation made on behalf of the defendant by his counsel, Mr Joseph Lee. I will start off by saying that there is no mitigation that can be meaningfully advanced on defendant’s behalf in this case except for his pleas of guilty.

The court of course have much sympathy for the conditions of the defendant’s girlfriend, but as the defendant has rightly said, he only has himself to blame for these misfortunes and if he is truly and genuinely remorseful for what he has done, I will only say this to him, “Serve the sentences that you rightly deserve and come out to be a good man and to be a responsible husband, and that is all you need to do!”

The defendant is no doubt a persistent robber. In his last five robberies convictions, the sentences of which were also dealt in the Court of First Instance by Zervos J (as he then was) in 2014. His Lordship enhanced on that occasion his sentence by 12 months on each charge. In passing the sentence, Zervos J remarked as follows:

“A repeat offender must expect, and will usually receive, an enhanced sentence for his continued attitude of disobedience of the law. An enhanced sentence is not given as an additional punishment for previous offences for which the offender has already been punished, but for the aggravating factor for his repeated offending where previous sentences have not deterred him and hence he poses as a danger to the community. As a repeat offender, the defendant stands before this court, is familiar with the criminal processes for offences of this type and therefore more culpable and more likely to recidivate. This warrants the imposition of condign punishment.”

When Zervos J rejected the submission by the defendant’s then defence counsel that the leading case of R v Mo Kwong Sang was for cases involving armed robbery and did not have application to the case, his lordship continued to comment and I quote again:

“The case identifies various factors or features that may be exhibited in a robbery, whether armed or not, which may heighten the level of seriousness of the offending and warrant an increased sentence. Such factors or features include, where the robbery involves physical violence or threats to the victim, where the robbery takes place in an isolated location or in domestic or business premises including common parts such as a lift or a staircase, where there has been a multiplicity of offences of a similar kind and where the victim is vulnerable and alone. Mr Pun has also referred me to HKSAR v Ting Chiu & Another and R v Yau Kwok Tung, where the Court of Appeal had suggested that a starting point of 4 years’ imprisonment would be appropriate for an unarmed robbery, but this would be subject to upward adjustment for aggravating factors.”

I entirely agree with the above comment. What the defendant did in the present five robberies were not materially different from the previous five robberies which he had committed and pleaded guilty in 2014. If anything, the present offences were even worse and more serious in that in Charge 1, he threatened to hit the head of the female victim with a beer bottle held in his hand, in Charge 4, he had used a nail clipper and pointed it to the 63-year-old female victim and lastly, on Charge 5, the defendant was pushing an elderly 76-year-old lady to the ground and even dragged her on the ground during the struggle.

In the remaining cases, he stalked the woman victims when they were alone and vulnerable in a lift lobby, a private vehicle or even inside a female toilet cubicle.

In all these cases, he attacked them by forcefully grabbing their bags and sometimes engaging even in physical violence against the victims. Worse still when he committed Charge 3, 4 and 5, he was doing it while he was on police bail in relation to the two West Kowloon Court cases which I have mentioned earlier.

After consideration, I would impose a starting point of 4 years and 6 months’ imprisonment on Charge 2 and 3 which I would enhance by 15 months for his persistent offending, which increase the culpability for the crimes he has committed.

The enhancement I have ordered on each charge is of course by no means lenient. It is because for the same reason, his sentence on each robbery charge has already been enhanced by 12 months back in 2014, but obviously even the previous enhancement of 12 months failed to deter this defendant. As such, I felt that there is a need to further increase the level of enhancement in order to deter further this defendant and to protect the public from his reoffending. I also have to order that the sentence be increased by a further 3 months on Charge 3 because it was committed whilst on bail.

In Charge 1 and 4, the starting point should be 5 years as these two cases were cases of armed robberies when the defendant admitted using a beer bottle and a nail clipper which was a metal sharp object and he had displayed the same during the robberies.

In Charge 5, the starting point of sentence also needs to be enhanced from 4 years and 6 months to 5 years because of his ruthless attack and his use of violence on the elderly female victim.

On each of the charges, 1, 4 and 5, on account of his persistent offending, I also similarly increase the starting point by 15 months as the other charges I have mentioned.

Lastly for the same reason, as the defendant committed the offences whilst on bail, I also increase the starting point by a further 3 months in relation to Charge 4 and 5 similarly.

To recap, the starting point for each charge after various enhancements are therefore as follows: Charge 1: 75(60 + 15), Charge 2: 69(54 + 15), Charge 3: 72(54 + 15 + 3), Charge 4: 78(60 + 15 + 3), Charge 5: 78(60 + 15 + 3).

From those starting points, I shall all reduced by one-third for the defendant’s guilty plea accordingly. After reduction, as a result, the final sentence on Charge 1 is 50 months; Charge 2, 46 months; Charge 3, 48 months; Charge 4 52 months and Charge 5, 52 months.

Taking into account the totality principle, I make the sentences on Charge 1, 2, 3 concurrent with each other on the one hand and the sentences on Charge 4 and 5 also concurrent on the other hand, of which 14 months of the first three charges is to be consecutive to the sentences on the last two charges, thus making a total sentence of 66 months or 5 years and 6 months’ imprisonment.

The total sentence of 8 months’ imprisonment in respect of WKCC 170/2019 shall run wholly consecutive to the present offences as the defendant’s last two convictions were in relation to two charges which were entirely separate and distinct from the present offences and they were all committed well before the commission of the present offences. I see no reason why the defendant should not fully serve the sentences of both cases.