On 18 January 2021, the defendant pleaded guilty in the Eastern Magistrates’ Courts to one count of wounding with intent (Charge 1), contrary to section 17(a) of the Offences against the Person Ordinance, Chapter 212 and one count of robbery (Charge 2), contrary to sections 10(1) and (2) of the Theft Ordinance, Chapter 210.
When the defendant appeared before me on 16 August 2021, he confirmed his pleas and accepted the Summary of Facts. Briefly, the defendant was, at the time of the offences, a resident of a half-way house operated by a psychiatric rehabilitation association. In the night of 2 January 2020, Mr Au Yeung, a healthcare worker of the half-way house, suspected that the defendant had consumed alcohol in contravention of the rules of the half-way house. He therefore informed his supervisor who later told the defendant that he could not continue to stay there as he had breached the rules.
Later that night, the defendant went to Mr Au Yeung’s office and scolded him for reporting the matter to his supervisor. At the time, the defendant was holding a knife with a serrated blade of about eight inches long. In the heat of the argument, the defendant dashed towards Mr Au Yeung with the knife and following a struggle, Mr Au Yeung’s face, left palm and left fingers were injured. Afterwards, the defendant took out another knife and pointed it at Mr Au Yeung’s neck, demanding him to open the safe to give him the money. Mr Au Yeung complied and the defendant then tied up his hands with some plastic tapes and told him to lie on the floor. When the defendant asked Mr Au Yeung the passcode for the entrance of the half-way house, Mr Au Yeung also gave him that. After the defendant had left, Mr Au Yeung successfully untied himself and reported the matter to the police. Upon checking, it was found that the defendant had taken away cash of HK$6,260 and a bank passbook which properties could not be recovered.
Mr Au Yeung was subsequently sent to the hospital and was found to have 2-centimetre to 5-centimetre lacerations on his left index finger, left middle finger, left palm and left lower face, with the cut on the left index finger down to the subcutaneoues layer but the underlying flexor tendons and neurovascular structures were intact. He was treated and discharged on 3 January 2020 but was given sick leave up to 22 January 2020.
On 6 January 2020, the defendant was arrested and under caution, he said that as Mr Au Yeung did not allow him to drink alcohol, he used a knife to rob him. The defendant gave a fuller version of his story when he was video-interviewed and said that, after being confronted by Mr Au Yeung and his supervisor, he had gone outside to buy three knives, one large, one medium-sized and one small-sized from a store. He kept the medium-sized knife in his room and put the large one at his waist area while holding the small one in his hand when he went to look for Mr Au Yeung. The defendant claimed that he only used the knife to scare Mr Au Yeung but as the latter resisted, he used the knife to injure Mr Au Yeung. The defendant said, afterwards, he wanted to leave but as he had no money, he demanded Mr Au Yeung to take out the money from the safe.
After the defendant had left the half-way house, he said he boarded a taxi and went to Sheung Shui. There, he discarded the knives into a rubbish bin and he then took a taxi to travel to various places in Sheung Shui.
The Defendant’s Background and Mitigation
The defendant was born in Hong Kong and was aged 54 at the time of the offences. He was educated up to Primary 5 and had worked as a casual worker. He was sentenced on 18 previous occasions between 1983 and 2018 in respect of a total of 23 charges, five of which were robbery offences, one was attempted robbery, one common assault and one AOABH. He also had a total of nine drug-related convictions.
It was reported that since 2010, the defendant had been suffering from alcohol dependence syndrome, generalised anxiety disorder and dissocial personality disorder and he had five past psychiatric admissions with the usual presentation of violence and aggressive behaviour from interpersonal disputes after consuming alcohol or illicit substances.
In view of the defendant’s psychiatric history, I adjourned sentence to today so as to obtain two psychiatric reports which I now have. Briefly, it was disclosed in the reports that the defendant had a history of punching a nurse and a co-patient while he was in Castle Peak Hospital in 2017 and 2019. However, both psychiatrists considered that the defendant was stable although he remained to have poor insight towards his drinking problem and the resulting violent behaviour. In-patient treatment was not necessary at present while outpatient follow-up was recommended.
In mitigation, Ms Chan for the defendant, submitted that the defendant had only stayed in the half-way house for about two months prior to the offences. As there were a lot of rules for the residents, the defendant was not happy about the arrangement. Further, he had applied for leave to visit his mother before the Lunar New Year but the application was refused. The defendant became depressed and he found it difficult to adapt to the pattern of life in the half-way house. As a result, he resorted to drinking and on the night in question, he pointed the knife at Mr Au Yeung so as to vent his anger.
Further, Ms Chan said that as the defendant’s own cash was kept by the management staff of the half-way house and as he wanted to have enough money to move to another place, he decided to take the money from the safe. However, after he had left the half-way house, he still felt confused and he just loitered around in Sheung Shui. The defendant said he had spent all the money he took on the taxi rides. As the defendant remembered that he had some savings in his bank account, he took the money out and intended to give it to his mother but he was arrested when he met with his mother.
Ms Chan urged this court to pass as lenient a sentence as possible, saying that the defendant only committed the present offences because of his inability to adapt to the routine of the half-way house and also because of his inability to properly control his emotions.
Sentencing Considerations and the Sentence Imposed
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 robbery, that would call for a starting point of 5 years. The robbery also involved an invasion into Mr Au Yeung’s office and tying him up. In the circumstances, a starting point of 7 years is warranted. Although the defendant had previous convictions of robbery, I would not enhance the sentence for the present robbery charge as his previous convictions were between 1991 and 2009, some 10 to 30 years ago. By previous convictions, of course, here I am referring to his previous convictions of robbery.
In respect of the wounding offence, Mr Au Yeung was fortunately not seriously injured and having considered all the relevant circumstances, including that it was more like an impromptu act rather than a well-planned execution of a violent attack, I am of the view that a starting point of 3 years is appropriate. Again, although the defendant has previously committed offences under the Offences against the Person Ordinance, I do not consider it necessary to enhance the sentence for this wounding offence as his previous convictions were of a relatively minor nature and were quite some time ago.
The defendant pleaded guilty at the earliest opportunity, I would give him the full one-third reduction. Further, he has made full restitution of HK$6,260 to the half-way house this morning. Although this was a late move, I am prepared to give a further reduction of 3 months to the defendant in respect of the robbery charge.
Apart from the restitution and his guilty pleas, I do not see any other mitigating factors warranting any further reduction. In saying this, I have not overlooked that in mitigation, Ms Chan had referred to HKSAR v Chan Sau Lan, Becky, CACC 93/2017, [2018] HKCA 155 where the Court of Appeal took it as a relevant background in sentence that the applicant had obvious mental problems which made it difficult for her to understand how she should properly resolve her complaint with the jewellery shop which she robbed. However, the case here is very different. The defendant was treated for his problem and was found to be stable before being arranged to stay in the half-way house. If it had been otherwise and if, as suggested by Ms Chan, the defendant could not control himself when he committed the present offences, then one would expect to see such observations in the two psychiatric reports and in fact, in such circumstances, one would expect that the defendant might require in-patient treatment rather than being released to the half-way house.
Surely, the defendant had been warned not to consume alcohol but the psychiatrists did not suggest that he committed the present offences because of his psychiatric condition.
In any event, according to the mitigation advanced by Ms Chan on behalf of the defendant, he pointed the knife at Mr Au Yeung because he wanted to vent his anger; and he committed the robbery because he wanted to get the money so that he could live outside the half-way house.
In the circumstances, I do not see how the defendant’s psychiatric condition could assist him in mitigation.
There are two charges and while it might be suggested that the wounding offence was committed in the course of the robbery, according to the defendant himself, the initial pointing of the knife at Mr Au Yeung was to vent his anger. Therefore, it was not entirely part and parcel of the robbery.
Having considered all the relevant matters, I take the view that a partially consecutive sentence should be passed for the two offences. For the wounding charge (Charge 1), 3 years reduced by one-third would be 2 years. For the robbery charge (Charge 2), 7 years reduced by one-third would be 4 years and 8 months. A further reduction of 3 months to take account of his restitution would bring the sentence to 4 years and 5 months. Applying the totality principle, I consider that an overall term of 4 years and 9 months upon plea should sufficiently reflect the defendant’s overall culpability in these two offences. I therefore order that 2 years and 9 months of the term for Charge 2 are to be served consecutively to the sentence for Charge 1, the rest to be served wholly concurrently, resulting in a total term of 4 years and 9 months.