HKSAR v. Lee Kwai Heung

DCCC 1115/2023

[2024] HKDC 1017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1115 OF 2023

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REASONS FOR SENTENCE

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1.The defendant is convicted of 8 charges on his own plea and agreement to Amended Summary of Facts:

(a)  attempted robbery, contrary to section 10 of the Theft Ordinance, Cap 210 and sections 159G and 159J of the Crimes Ordinance, Cap 200 (“1^st Charge”);

(b)  assaulting a police officer in the execution of his duty, contrary to section 63 of the Police Force Ordinance, Cap 232 (“2^nd Charge”);

(c)  2 charges of resisting a police officer in the execution of his duty, contrary to section 63 of the Police Force Ordinance, Cap 232 (“3^rd and 4^th Charge”);

(d)  driving without a valid driving licence, contrary to section 42(1)  and (4)  of the Road Traffic Ordinance, Cap 374 (“5^th Charge”);

(e)  driving an unlicensed vehicle, contrary to section 52(1)(a)  and (10)(a)  of the Road Traffic Ordinance, Cap 374 (“6^th Charge”);

(f)  driving a motor cycle not wearing an approved protective helmet, contrary to regulation 3(1)  of the Road Traffic (Safety Equipment)  Regulations, Cap 374F (“7^th Charge”); and

(g)  using a motor vehicle without third party insurance, contrary to section 4(1)  and (2)(a)  of the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap 272 (“8^th Charge”).

Facts

2.At around 12:05 am on 4 June 2023, PW1 was walking alone along Man Tung Road, Tung Chung. The defendant was then riding an electric bicycle and when the defendant approached PW1, he used his right hand to grab onto PW1’s handbag with great force for about one to two seconds. PW1 actively resisted by holding onto the said handbag. The strap of the said handbag was thus torn as a result of the physical struggle between the defendant and PW1. PW1 heard someone yelling from behind as the defendant fled the scene without the bag.

3.The incident was witnessed by SGT 58685 (“PW2”)  who was on patrol in the area and had been keeping the defendant under observation since 11:45 pm on 3 June 2023 as he saw the defendant was then riding an electric bicycle without a helmet and was tailing PW1 from behind. After PW2 witnessed the incident, he immediately yelled “police, stop” but the defendant did not comply and fled the scene. PW2 chased him from behind. Two other police officers (PW3 and PW4)  also joined in the pursuit on foot.

4.Later, the defendant dismounted from his electric bicycle and tried to escape on foot. PW2 then displayed his police warrant card and yelled “police, stop”. The defendant used his right fist to hit PW2’s chest. PW2 immediately restrained the defendant with the help from PW3 and PW4. They then revealed their police identity and warned him not to resist, but the defendant struggled violently. He was later subdued.

5.As a result of the defendant’s assault, PW2 sustained an abrasion at his chest in addition to some redness and tenderness. As a result of the defendant’s violent resist, PW3 and PW4 suffered abrasions at knees, and abrasions at right index, middle and ring finger respectively.

6.Later, the defendant was arrested. Under caution, he admitted owning the electric vehicle without a licence, third party insurance or helmet.

7.Police investigation showed that the defendant was the holder of a driving licence pertaining to private vehicles and light goods vehicles at the material time, but he did not possess a valid driving licence for motorcycles, and that the electric bicycle was not licensed nor was there any valid third party insurance.

Criminal record

8.The defendant has 7 previous criminal records involving convictions of 8 charges, 4 of which related to theft, and one is similar in nature to the 3^rd and 4^th Charge except that it was brought under section 36 of the Offences against the Person Ordinance, Cap 212, which may entail more severe punishment. The defendant does not have any similar traffic convictions.

Mitigation

9.The defendant was born in the Mainland and came to Hong Kong in 1996. He is now aged 36. He has been educated up to Secondary 1 level. He was single and lived with his family in a public housing estate. He was unemployed at the time.

10.It was admitted that although the defendant has some similar convictions in the past, he is not in the category of a persistent or serial offender. In fact, his previous convictions mainly relates to burglary and theft-related.

11.For the 1^st Charge, defence counsel said that this was an unsophisticated attempt, the defendant acted alone, no weapon was used and he came to PW1 trying to snatch her bag face-to-face. It was said that no injury was caused to PW1 and she did not need to go to hospital. It was also said that the defendant fled the scene after only a one to two seconds struggle with the victim and this showed that the defendant is not a professional robber. It was said that the defendant committed the offence because he was in financial difficulty, unable to secure a job after his release from prison in April 2023.

12.Defence counsel admitted that attempted robbery is a serious offence and the maximum penalty is life imprisonment. He referred this court to cases of HKSAR v Tam Ping Wo Angus, CACC 73/2020, HKSAR v Law Lee Hung, DCCC 781/2014, and HKSAR v Lee Kam Loi, DCCC 409/2009.

13.Defence counsel said that the present case is not as serious as the cases mentioned as PW1 was not grabbed by the neck or pushed to the ground, and she did not suffer any injury. He urged this court to adopt a sentencing starting point of no more than 30 months’ imprisonment for the 1^st Charge and he asked this court to give the defendant sentencing discount by reason of his guilty plea.

14.As for the 2^nd to 4^th Charge, it was said that the defendant acted foolishly and that he never meant to injure anyone. Defence counsel said the police officers only suffered minor abrasion injuries. He referred this court to HKSAR v Lo Kong Ho, DCCC 397/2009, HKSAR v Chan Ping Kwan, DCCC 270/2013 and the case of Lee Kam Loi as said above. He urged this court to adopt a sentencing starting point of 3 months in relation to each of the 2^nd, 3^rd 4^th Charge and to reduce them to 2 months’ imprisonment given the defendant’s guilty plea. He also urged this court to give the defendant concurrent sentence for each of these three charges.

15.As for the 7^th Charge, it was said that the maximum sentence is a fine of HK$5,000 and imprisonment for 3 months. Defence counsel said it was the defendant’s first conviction and the defendant did not travel far when committing this offence. He urged the court to impose a short sentence of imprisonment of a few days as the defendant cannot afford a fine.

16.As for the 5^th and 6^th Charge, defence counsel accepted that the defendant did not have the relevant driving licence although he did have a full driving licence covering private vehicles and light goods vehicles, and that the defendant does not have any criminal convictions for driving offences.

17.As for the 8^th Charge, the defendant would accept a disqualification order of 12 months to run from the date of conviction.

18.Defence counsel said that the defendant committed the 5^th, 6^th and 8^th Charge offences for the first time and that no one was hurt and no property was damaged as a result of his commission of these offences. In the circumstances, he urged this court to impose a short sentence of imprisonment for each of these charges and also asked the sentences for these charges be served concurrently with each other.

19.Defence counsel further asked this court to consider the totality principle to ensure that the defendant’s overall sentence is fair and commensurate with the criminality involved in this case. He said that although the offences in this case are separate and distinct in nature, they were committed within a relatively short time-frame, which, in effect, he said is a continuous criminal episode. He urged this court to give the defendant a light sentence and that the defendant has vowed not to reoffend again.

Discussion

20.This court has considered carefully the submission by the defence counsel as well as the authorities cited.

1^st Charge

21.Any person convicted of this offence upon indictment is liable to imprisonment for life. In the case of HKSAR v Wu Yee Ki, CACC 513/2005, it was said that robbery by reason of its nature of offending demands an immediate custodial sentence.

22.The defendant here is a man with 4 previous convictions, not similar but theft-related. This is a case of unarmed robbery in a public place by a lone robber, late at night, preying on a lone lady walking the street.

23.The circumstances under which an unarmed robbery was committed varies, from a simple snatching to one coupled with serious assaults. There is no actual sentencing starting guideline for this unarmed robbery. However, there are previous cases which suggest that in the absence of aggravating features, a sentencing starting point of 4 years’ imprisonment appears to be the maximum (HKSAR v Lam Ka Hung, CACC 294/2003).

24.In this case, there is no evidence that the victim has suffered physical injury, but there was a struggle between the defendant and the victim during which the strap of the handbag was torn. This demonstrates the force exerted whilst the defendant struggled with the victim. The struggle also appeared only to stop upon yelling of the police officer (PW2). There is no doubt that the victim had been shocked by the incident. According to PW2, he had been tailing and following the defendant for about 20 minutes before the incident occurred.

25.Considering the circumstances surrounding the commission of the offence and the relevant authorities, the court finds that the appropriate sentencing starting point would be 3 years’ imprisonment.

26.The court finds that the most valid mitigating factor is that of the defendant’s guilty plea, for which he is entitled to a full one-third sentencing discount. Accordingly, the defendant is sentenced to 2 years’ imprisonment for the 1^st Charge.

2^nd, 3^rd and 4^th Charge

27.For this offence, upon conviction, a person is liable to imprisonment for 6 months and a fine of HK$5,000.

28.The victim of the 2^nd Charge was hit in the chest one time by the defendant using his right fist and he sustained abrasion in the chest in addition to redness and tenderness. Victims of the 3^rd and 4^th Charge suffered abrasions at knees, abrasion at right index, middle and ring fingers respectively whilst they subdued the defendant who was violently struggling.

29.The court will adopt a sentencing starting point of 3 months’ imprisonment for the 2^nd Charge, 1 month imprisonment for each of the 3^rd and 4^th Charge.

30.As the defendant has pleaded guilty, he is entitled to a full one-third sentencing discount. The sentence for the 2^nd Charge is therefore 2 months’ imprisonment, and for the 3^rd and 4^th Charge is 20 days’ imprisonment each.

5^th Charge

31.On the first conviction of this offence, a person is liable to a fine of HK$5,000 and to imprisonment for 3 months.

32.This is the first conviction of the defendant. The defendant does have a valid driving licence for private vehicle as well as light goods vehicle. For this reason, the court finds that the appropriate sentencing starting point is 6 weeks’ imprisonment.

33.The defendant is afforded a one-third sentencing discount by reason of his guilty plea. He is sentenced to 4 weeks’ imprisonment for this charge.

6^th Charge

34.On the first conviction of this offence, a person is liable to a fine of HK$5,000 and to imprisonment for 3 months.

35.This is the defendant’s first conviction. Again the court finds the appropriate sentencing starting point is 6 weeks’ imprisonment. The defendant is therefore sentenced to 4 weeks’ imprisonment by reason of his guilty plea.

7^th Charge

36.Any person convicted of this offence is liable to a fine of HK$5,000 and to imprisonment for 3 months.

37.Defence counsel says the defendant is unable to pay any fine. For this reason, and this being the defendant’s first conviction, the court will adopt 9 days’ imprisonment as a sentencing starting point for this charge. The defendant is sentenced to 6 days’ imprisonment by reason of his guilty plea.

8^th Charge

38.A person convicted of this offence is liable to a fine of HK$10,000 and to imprisonment for 12 months.

39.This is the first conviction of the defendant as he does not ever have any motorcycle driving licence, but he does have driving licence for private vehicle as well as light goods vehicle. The commission of this offence obviously posed risk to other road users and property around. Having regard to the relatively less risk of damage or the relatively less extent of possible damage done by this electric bicycle as opposed to that of a motor vehicle, the court finds the appropriate sentencing starting point for this offence is 6 months’ imprisonment.

40.Again, he is afforded a one-third sentencing discount by reason of his guilty plea. He is therefore sentenced to 4 months’ imprisonment for this charge.

41.On conviction of this charge, the court shall, unless for special reason thinks fit to order otherwise, order the defendant be disqualified from holding or obtaining a driving licence of any class of vehicle for such period as the court may determine, being not less than 12 months or more than 3 years from the date of conviction.

42.This court sees there is no special reason in this case. Accordingly, the court now orders that the defendant be disqualified from holding or obtaining a driving licence of any class for 18 months from today.

Totality

43.Having regard to the total culpability of the defendant in the whole incident, the court considers that the total sentence of 30 months’ imprisonment is a just and proportionate sentence.

44.Accordingly, the sentence of the 2^nd, 3^rd and 4^th Charge to run concurrently with each other. The sentence of the 5^th, 6^th, 7^th and 8^th Charge also to run concurrently with each other. The sentence of the 1^st Charge to run consecutive to the sentence of the 2^nd to 4^th Charge, and also consecutive to the sentence of the 5^nd to 8^th Charge, making the total sentence for the defendant at 30 months’ imprisonment.