HKSAR v. Leung Wai Hung

DCCC 704/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Criminal Case No. 704 of 2008

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Coram : HHJ Yau in Court

Dates of Hearing : 3 March 2009

Date of Sentence : 18 March 2009

Charge : Robbery (搶劫)

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REASONS FOR SENTENCE

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1.The defendant faces 2 charges.  Charge 1 is robbery, contrary to section 10 of the Theft Ordinance, Cap 210 and Charge 2 is possession of offensive weapons in a public place, contrary to section 33(1) of the Public Order Ordinance, Cap 245.  The particulars of the charges are fully set out in the charge sheet and the court does not intend to repeat them here now.  The defendant pleads guilty to Charge 1.  Charge 2 is left on court file and is not to be activated without the consent of this court or the Court of Appeal.

Facts Admitted

2.According to the facts admitted by the defendant he was an off-duty police constable at the time of the offence, having joined the police force in 1983.

3.At about 1108 hours on 9.7.2008 victim of Charge 1 was on her way home at Greenland Garden in Tuen Mun.  The defendant suddenly appeared and snatched her handbag containing Rminbi Y10,000, HK$389.80 and items particularised in the charge.  The victim lost balance and fell on the ground.  The defendant pulled off the strap of the victim’s handbag and kicked her legs and hit her head with the handbag for 3 times.  The defendant ran away.

4.A passer-by caught the defendant and subdued him after a struggle, during which a cap, a wig and a facial mask worn by the defendant fell on the ground.  The victim recovered her bag at the scene.

5.The defendant was arrested and he remained silent under caution.

Criminal Record

6.The defendant has a clear record.

Background Report

7.According to the background report the defendant is aged 44 and is married with 2 daughters aged 8 and 13.  His wife is a kindergarten teacher.

8.The defendant was brought up in a police family.  His father is a retired police officer while his 2 brothers are respectively a former and a serving police officer.  The background report is wrong in saying that the defendant joined the police force in October 1998 after completing Form 5 education.  According to the defence counsel the year should be 1983.  The defendant had satisfactory performance in his job and became a senior constable in 2001.  He was awarded the police long service medal in the same year.

9.The defendant borrowed money from financial institutions in 2003 and 2004 to help footing the legal expenses involved in the appeal of his brother who had been sentenced to 6 years imprisonment for offences of robbery and kidnapping.  Due to financial constraints and worries about his promotion in the police force he became addicted to gambling, resulting in huge credit card and financial institution debts.  Although his wife and family members had helped him clear the debts in 2006 he continued to gamble and accumulated new debts amounting to $400,000.  To avoid debt collectors to cause nuisance to his wife at her place of work the defendant committed the offence in the hope to obtain some money to settle the debts.  According to the probation officer compiling the report, the defendant shows regret for what he had done.

10.The probation officer says that the wife is emotionally upset for what the defendant had done which would also affect the children.  She would move out with the children to live at her mother’s place.  

Mitigation

11.Counsel representing the defendant points out in mitigation that the defendant has a good record of service in the police force.  He suffers from hypertension and needs to take daily medication.  Because of the offence the family will have move out of the police quarters and the defendant will stand losing all the retirement benefits of over $600,00 lump sum and pension.

12.Counsel stresses that the offence started with snatching and was not a planned robbery.  The defendant committed it because of financial difficulties. 

13.Counsel submits to court letters of mitigation of the defendant, his wife, his daughters, his younger brother and a friend.  The defendant explains in the letter how he ran into debts and became worried about his job promotion.  He feels ashamed to have become a criminal and is remorseful and sorry for his family.  He is determined to mend his way.

14.The wife describes the defendant as a good husband and father and explains that the defendant had only developed the gambling habit as a result of the tremendous stress the defendant was under because of financial problems and worries about his career prospects.  The defendant and the whole family suffer because of the present case.

15.The daughters say that the defendant loves them and they miss him.

16.The younger brother who is a serving police officer says that the defendant committed the offence out of a momentary impulse and is now remorseful.  He stands to lose everything because of the offence.

17.The friend says that the defendant is a kind and good father and the offence is out of his character.  The defendant felt upset because of the nuisance caused to his wife and family by the debt collectors and this had prompted him to commit the offence.

18.All the authors of the letters are of the view that the defendant is now remorseful.  They all ask the court to treat the defendant leniently.

19.Counsel reiterates the reasons of the defendant offending the law which are similar to those set out in the background report.  He also cites the authority of Mo Kwong Sang v R [1981] HKLR 610 but emphasises that the robbery in the present case took place in daylight time, a one-man job and no weapon was used. 

Sentence

20.It is extremely sad to see a police officer who has a good record of service to fall from grace in such a manner.  What he has done has not only brought disgrace to himself and his family but has also brought the police force into disrepute.

21.The defendant is aged 44 and has served in the police force for more than 24 years.  He has a happy family with 2 daughters whom he loves and who love him.  It is not difficult to see the disastrous consequences to the defendant and his family brought about by the present case.  However, as a police officer the defendant should know very well that such consequences are the inevitable result of offending the law.  He should be prepared to accept them before he decided to embark on his sinister plot.

22.The court accepts that the defendant committed the offence due to financial pressure and that it was not a planned robbery but a case of snatching which went wrong.  Financial problems of course can never constitute an excuse to offend the law.  In the present case the defendant had no doubt thought the matter over and made some planning before making the move.  He disguised himself by wearing a facial mask as well as a wig and a cap.  Obviously he was trying to hide his identity.  If he had managed to get away the chances of the police being able to catch him would have been extremely remote.  This adds gravity to the case.

23.The court bears in mind that the defendant will stand to lose his job and retirement benefits.  Although the decided cases are somewhat divided as to how much weight this carries in terms of mitigation there are ample authorities saying that in an offence of a serious nature like the present one it does not carry too much weight.  This court will nevertheless take such loss into consideration and give the defendant appropriate discount.

24.Robbery is a serious offence.  It is no doubt an aggravating factor when it is committed by a police officer who is supposed to be the defender of the law and the protector of the lives and properties of citizens.  Fortunately in the present case the victim, as pointed by the defence counsel in mitigation, did not suffer any serious injuries.  There was also no loss of properties or money.

25.Having considered the whole circumstances including all the mitigations ably put forward by the defence counsel the court adopts a starting point of 3½ years imprisonment.  Giving credit for the guilty plea of the defendant the court sentences him to 2 years 4 months imprisonment.

Mr Peter Cahill, Counsel on Fiat, for the Prosecution

Mr David Boyton, instructed by Messrs S Y Chu & Co Solicitors for the Defence