HKSAR v. Lam Siu Ming

HCCC 386/2018

[2019] HKCFI 1755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 386 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The Charge and the Facts

On 3 December 2018, the defendant pleaded guilty in the Eastern Magistrates’ Courts to one count of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Chapter 210.

This morning, he confirmed his plea before me and accepted the Summary of Facts. Briefly, the facts were these: about noon on 16 May 2018, when the 48-year-old lady who suffered from poliomyelitis was unlocking the metal gate of her flat in Sau Mau Ping, the defendant appeared and pointed a 30‑cm‑long knife at her waist, causing the lady to shriek. The defendant then told her not to shriek and that he would stab her to death should she do so again.

Thereafter, the defendant pushed the lady into the premises and then pushed her onto the sofa. The defendant demanded money, ATM card, rings and bracelet from the lady who responded by handing over cash of HK$3,900 and a gold bracelet worth HK$14,368.

After taking away the lady’s properties, the defendant tied the hands and feet of the lady by using plastic “cable ties”. He also gagged the lady with a sock and asked her not to call the police.

After the defendant had left the premises with the properties, the lady freed herself and sought help from her neighbours. The police were called. Upon police arrival, the lady was found to have redness around her wrists and ankles.

Later, it was revealed that the defendant lived in the same building as that of the lady but on a different floor. The defendant was arrested on the following day and was picked up by the lady in a subsequent identification parade. Under caution, the defendant admitted having committed the robbery and mentioned that he robbed the lady because he was hard-pressed for repayment of debts by his creditors.

As a result of the search conducted in the defendant’s home premises, cash of HK$4,000 and a knife were found. Under caution, the defendant said that the money was what was left from robbing the lady. During the video-recorded interviews the defendant had with the police subsequently, he made similar admissions and supplemented that he had taken a knife, two pairs of socks and some cable ties from his home for the robbery. He also told the police that he carried the knife in order to cause fear to the lady and the socks were for gagging purpose. Further, he claimed that he dropped the knife when he approached the lady as he was nervous. The defendant admitted that he eventually sold the lady’s bracelet to a jewellery shop for HK$11,900. Together with the cash taken from the lady, he then repaid his debts. The 4,000 cash found at his home was the remaining money.

Mitigation and The Defendant’s Background

The defendant was born in Hong Kong and was educated up to primary school level. He is aged 55 and is married with one daughter, aged six. At the time of the offence, the defendant was unemployed and reportedly, he had previously worked as a cook, transportation worker and construction site worker until December 2017 when he became unemployed. The defendant was involved in one incident of theft and he was cautioned and discharged for that in January 1978.

In mitigation, it was said that the defendant did not intend to hurt the lady but that he himself was subject to huge pressure for repayment of debts totalling about HK$90,000. Although he had armed himself for the robbery, Mr Jim submitted that the robbery was not detailedly planned. Further, Mr Jim urged this court to accept that the robbery was amateurish in nature because the defendant acceded to the lady’s request not to take away her ATM card and rings. As to the properties taken away by the defendant, Mr Jim relied on the contents of the video-recorded interview to suggest that the defendant intended to repay money to the lady when he had it in the future.

Overall, it was said that the defendant committed the offence foolishly and that was merely because of the pressure he had at the time for the repayment of debts and because of his care and love for his young daughter, because one of the demand letters mentioned about taking her(his?) daughter away.

Sentencing Considerations

The tariff for armed robbery was laid down in Mo Kwong Sang v R [1981] HKLR 610.

In this case, the defendant had displayed a knife in the course of the robbery, that would call for a starting point of 5 years. The robbery also involved an invasion into the lady’s home premises and the tying up and gagging of the lady, such would bring this starting point to 7 years. Moreover, I consider that there are further aggravating factors in the present case in that there was a degree of planning of the robbery as evidenced by the defendant’s arming himself with the knife and the socks although Mr Jim referred to the amateurish nature of the robbery. I also note that the defendant had targeted a vulnerable person for the robbery as the lady was suffering from poliomyelitis. In addition, it is recorded in the Summary of Facts that when the lady shrieked, the defendant then threatened to stab her to death if she shrieked again. Such a threat would no doubt add to the fear of the lady given her own condition and that she was being pointed at with a knife at that time. Therefore, having considered the tariff, the facts and all the relevant circumstances, I take the view that the appropriate starting point is one of 7 years and 3 months.

The Sentence Imposed

I have carefully considered the mitigation of the defendant and the plight that he was in at that time. However, other than his plea which would earn him a one-third reduction, I find nothing else which would warrant any further reduction in sentence. 7 years and 3 months reduced by one-third is one of 58 months’ imprisonment, and this is the term I impose on the defendant for the robbery to which he has pleaded guilty.