HKSAR v. Ng Chun Nam

DCCC 921/2020

[2021] HKDC 549

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 921 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

The defendant pleaded guilty to a charge of "Robbery".

Summary of Facts

2.About 9:15 p.m. on 14 August 2020, Mr. Chau (PW1) was waiting for his girlfriend, Madam Lin, outside the rear entrance of Grand Scholar, No.419K Queen's Road West, Sai Wan ("the Scene").  Suddenly, the defendant, who was holding a glass bottle in his right hand, walked towards PW1, leaving only a distance of about 1 metre between himself and PW1.  He waved the glass bottle in front of PW1 and pointed it at him.  He asked PW1 to surrender $200 to him.  Because of the defendant's words and acts, PW1 took out his wallet and handed $80 to the defendant.

3.The defendant asked PW1 for more money.  PW1 replied that he did not have any more.  The defendant then demanded to inspect PW1's wallet and sling bag.  PW1 complied.  When the defendant saw PW1 taking out his iPhone (valued at $6,000) from his left trouser pocket, he asked PW1 to hand it over.  PW1 complied as well.  The defendant further demanded to inspect PW1's right trouser pocket.  PW1 also complied.

4.When PW1 saw a male ("Male A") walking by, he told Male A that there was a robbery and asked Male A to alert the Police.  As the defendant was distracted by the presence of Male A, PW1 snatched the glass bottle from the defendant.  The defendant then began waving his arms and made a fighting stance in front of PW1.

5.About 9:20, Madam Lin (PW2) arrived at the Scene.  She saw PW1 and the defendant facing each other; whereas PW1 was holding a glass bottle and the defendant, PW1's iPhone.  PW1 asked PW2 to call the Police.  She complied.  PW1 later managed to get back his iPhone and $80 cash from the defendant.  The defendant tried to escape but was intercepted by PW1.

6.About 9:25, PC 16495 (PW3) and 2 other police officers arrived.  The defendant tried to leave the Scene but was stopped and handcuffed by PW3.

7.In his 2 video recorded interviews, the defendant admitted that he had drank 2 cans of beer after getting off work on the day of the offence.  He also drank a bottle of Chinese rice wine.  Afterwards, he used the empty wine bottle to threaten PW1 and demanded money from him repeatedly.  He could recall details of the incident.

Mitigation & Sentence

8.The defendant is 54 and has a clear record.  Defence solicitor Ms. Chau informed me that the defendant works as a cleaner earning about $20,000 per month.  He is married with 2 sons (both are tertiary students).

9.In mitigation, Ms. Chau submitted that as revealed in his Psychiatric Reports, the defendant suffers from hearing impairment and subnormal intelligence.  He is also diagnosed with Alcohol Dependence Syndrome.  Ms. Chau further submitted that although the defendant is assigned to a public housing unit in Tung Chung, he chooses to live with his 90-year-old mother, who suffers from dementia, in Sai Ying Pun in order to look after her.  His wife and 2 sons reside in Tung Chung.   Ms. Chau explained that the defendant's mother relies completely on the defendant for her daily routines.  Ms. Chau stressed that what the defendant did was out of his character.  Without denying his mens rea, Ms. Chau submitted that the defendant was obviously influenced by alcohol at the time of the offence.

10.A clear message must be conveyed to the general public that robbery is a serious crime and that the offenders would most certainly be punished by long-term imprisonment. Although an empty glass bottle was displayed and pointed at PW1, I do not consider the present offence an armed robbery.

11.I have borne in mind the Court of Appeal's decisions in HKSAR v Ting Chiu & another [2003] 3 HKLRD 378 and HKSAR v Lam Chun Nam [2008] 2 HKCLRT 137 regarding the sentencing of unarmed robberies. According to HKSAR v Chan Sai Chiu [2001] 1 HKLRD 478, even for a robbery involving "pepper-throwing", the appropriate starting point is 4 years' imprisonment.

12.Ms. Chau has pointed out that according to PW1's witness statement, no actual force was used by the defendant during the incident. Since PW1 suffered no loss or injury, I consider a starting point of 3.5 years' imprisonment just and appropriate. With the timely guilty plea, the sentence is reduced to 28 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 28 months' imprisonment for this charge.

13.The defendant needs to stay away from alcohol. Both psychiatrists recommended him to continue with outpatient psychiatric treatment for his alcohol misuse problem. I invite the Commissioner of Correctional Services to arrange for the defendant to continue to receive the necessary psychiatric treatment and medication.