HKSAR v. Tam Man Tik and Others

HCCC294/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 294 OF 2008

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Before: DHCJ Toh

Date: 11 February 2009 at 4.08 pm

Offence:  Robbery (搶劫)

Transcript of the Audio Recording
of the Sentence in the above case

COURT:  1st and 2nd defendants, please stand.

The 1st defendant has pleaded guilty to two counts of robbery.  The first one happened on 15 July 2008, and the second robbery happened on 17 July 2008.

The 2nd defendant has pleaded guilty to the 2nd count of robbery only.

The facts in relation to both are quite similar.  In the first robbery on 15 July at about 1 am, the victim, aged 62, was working alone in his shop, and the 1st defendant, together with the 3rd defendant in this case, went into the shop to buy food and softdrinks.  I think in the street language it would be “to case the joint”.  Then both defendants left the shop, but they remained outside the shop for about half an hour, and then they returned to the shop, and the 1st defendant used a brick to hit the head of the victim, Mr Ma, four to five times.

The 1st defendant then said to the victim that he will leave after he takes the money, and proceeded to take the coin box, and then both defendants fled the shop. 

Mr Ma, subsequently, was taken to hospital, and he was found to have injuries, the most serious being on his scalp requiring 11 stitches, and he had abrasions and a wound on his right cheek.

In the 2nd count of robbery, on 17 July - that is, two days later - at 4.30 am, the victim, Mr Wong, aged 63, was working alone in his newspaper store.  The 1st and 2nd defendants, wearing caps and surgical masks, stopped in front of the shop. The 1st defendant was holding up a stick, which was really a handle of a mop, and pointed it at Mr Wong, telling him not to make any noise.  Suddenly, the 1st defendant used that stick to bash Mr Wong’s head three to four times.  Mr Wong felt dizzy and fell to the ground.

At that time, the 1st defendant told the 2nd defendant to hurry up, and the 2nd defendant went into the shop and snatched the coin box containing $800 to $900, and they both fled.

Mr Wong was subsequently taken to hospital and discharged after he was treated for the swelling and bruising on his fingers, scalp and right side of the face.

The 1st defendant was arrested in the afternoon of 17 July, and under caution he admitted that he had committed the robberies because he wanted to find money for his girlfriend to have an abortion.  The 1st defendant admitted also that for the first robbery, he and the 3rd defendant had conducted reconnaissance for about two hours before going in to rob.  He had picked up the brick from a temple.  For the second robbery, the 1st defendant admitted he had prepared the caps and the surgical masks for himself and for the 2nd defendant, and he had held the stick to hit the victim in the second robbery.

The 2nd defendant was arrested in the evening of 17 July.  The 2nd defendant said he had received a call from the 1st defendant and then he went out to meet the 1st defendant, who gave him a cap and surgical mask and told him that they were going to rob a newspaper store.  The 2nd defendant admitted that he was responsible for taking away the money.

The victims in this case have now fully recovered from their physical injuries.  However, in robberies of this nature, very often the emotional impact may not be so easily erased, and that is why the courts have always looked with grave concern at offences of this nature.

The prevalence of this type of cases was so great that in the year 2000 the Court of Appeal had to lay down guidelines for sentencing for robberies involving head bashing, and that was in the case of Secretary for Justice v Ma Ping Wah [2000] 2 HKLRD 312.  At that time, the prevailing guideline for robbery was set down in the case of Mo Kwong Sang v R in 1981, but the Court of Appeal was so concerned with this type of robbery that they considered that the guidelines in Mo Kwong Sang did not contemplate this type of robbery, and so the court, in Ma Ping Wah, laid down new guidelines.

It is pertinent to note that Stuart-Moore J, VP, at page 319, said this:

“Having looked at the guidelines in Mo Kwong Sang v R [1981] HKLR 610, we have not been persuaded that the time is yet right for any general upward revision of the tariffs for armed robberies of the kind contemplated in that case.  It seems to us that the courts have ample powers of dealing with the kinds of robbery for which

Mo Kwong Sang v R provides guidelines as to sentence.  Essentially, the guidelines which that case provides set out the tariff for sentence following a contested trial, but there is ample discretion provided to the courts where an upward adjustment where there are aggravating factors.  However, the judgment does not provide an exhaustive list of what may amount to aggravating factors.  It seems to us a matter of the most straightforward common sense that where a robber deliberately sets about his victim by striking a blow or, as in this case, blows, to the victim’s head with a weapon which is capable of causing brain injury, this will be an aggravating factor.  It is a particularly dangerous act.”

Stuart-Moore J, VP, then went on to say that:

“The court does not consider that any general changes to the guidelines laid down in Mo Kwong Sang were necessary.”

But he concluded:

“In our judgment, the usual sentence to be imposed for such robberies following a contested trial where it is established that a deliberate blow to the head with a weapon capable of causing injury to the brain has been struck by the robber or the culprit who is intent on robbery should not be less than 8 years’ imprisonment.  This is of course not a straitjacket, and there may be some offences where a lesser penalty can be imposed depending on all of the circumstances.  Equally, depending on how severely the victim is injured, there will be other cases for which greatly increased sentences will be required.”

It is clear therefore that for this type of robbery, 8 years’ imprisonment as a starting point is what has been laid down.

In this present case, in Count 1 in relation to the 1st defendant, the victim was hit with a brick, which is capable of causing brain injury, and the victim was hit for four to five times, and the brick is a heavy one.  And in light of the victim’s age, the defendant is very lucky that the victim suffered no more than 11 stitches.

In Count 2, where the 1st and 2nd defendants are involved, the victim was bashed on the head with a stick for three to four times.  The stick is a thick stick.  It is in fact the handle of a mop or a broom.  So again it is capable of causing brain injuries, and in this case, luckily, the victim survived and his physical injuries have been healed.

The aggravating feature in this case, apart from the fact that on both occasions the robbers had entered the shop to rob the victims in the early hours of the morning, is also the fact that it appears the 1st defendant seems to be targeting elderly victims.  Now, elderly victims have to be protected when they are going about their normal business, trying to earn a living, in the early hours of the morning.

On behalf of the 1st defendant, counsel had submitted, in mitigation, that he feels remorseful and he pleads for a chance.  Now that he is a father, that he will now mature and get back on the right track.  He urges this court to consider a training centre report.  I hardly need to say that this is absolutely not the case for a training centre to be even considered.  The age of the defendant cannot be said to be exceptionally young; he is aged 18.  The only mitigation in the 1st defendant’s case is the fact that he pleaded guilty, and that will be taken into account.

As the courts have always said when sentencing in this type of offence, the interests of the community must be considered, and the youth of the accused who commits a serious robbery will count for little, and in the case of The Application for Review of Sentences [1972] HKLR 370 at 417, the court said:

“The personality, youth or personal circumstances of the offender may pale into insignificance because of the magnitude or prevalence of the offence in question.”

Mr Ng, on behalf of the 2nd defendant, has urged this court to consider the fact that the 2nd defendant only got into this enterprise, into the second robbery, at the instigation of the 1st defendant, and he was helping out his friend and neighbour because the 1st defendant needed money for his girlfriend’s abortion. 

However, it is clear from the facts that the 2nd defendant, after the robbery, got his share of the proceeds of the robbery, so it was not wholly altruistic.  It is a fact that the 2nd defendant is entitled also to a discount because of his plea, which is an indication of his remorse, and I am told, and have no reason to doubt, that the 2nd defendant also led the police to where the mop stick was actually found prior to the robbery.

The 2nd defendant, as did the 1st defendant, have written letters of remorse.

As I have said, in this case, although the injuries cannot be said to be serious, there are aggravating features, and so in considering the starting point in relation to the 1st defendant, I was of a mind to increase the starting point from one of 8 years, because it appears to me that from the two robberies that the 1st defendant has pleaded guilty to, he appears to be targeting elderly people.

However, I take into account that the 1st defendant has a clear record, so in balancing the interests of the whole community and also to balance the fact that in this case the victim’s injuries cannot be considered to be serious, I have decided not to increase the starting point.

So I will take a starting point of 8 years for the 1st count and reduce it by one-third.  So the defendant on the 1st count is sentenced to 5 years and 4 months’ imprisonment.

On the 2nd count, I see no difference, so I would adopt a similar starting point of 8 years and reduce it by one-third to 5 years 4 months.

I have to consider the totality principle in this case, and taking into account the totality principle, I will make 2 years of the imprisonment in the 2nd count consecutive to the imprisonment of 5 years 4 months in the 1st count. 

So the 1st defendant will go to prison for 7 years and 4 months.

In the case of the 2nd defendant, he has only pleaded guilty to one count of robbery.  In his case, again, as I said, the robbery was in the early hours of the morning.  The victim was hit on the head several times.  So in the circumstances, I also have to consider that the 2nd defendant, although aged 18, has previous convictions for assault and theft.

So having considered the circumstances of the case, I consider an appropriate starting point in his case is also one of 8 years, reduced to 5 years 4 months because of his plea.

So he is sent to prison for 5 years and 4 months.

In relation to the 3rd accused, I will adjourn his sentencing for two weeks to obtain a training centre and probation officer’s background report.