CRIMINAL CASE NO. 69 OF 2009
v.
COURT: The defendant pleaded guilty to one count of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210.
The Summary of Facts which the defendant admitted show that the victim, Mr Lam, left his home in the afternoon of 22 October 2008, around 2 pm. He went to a Renminbi exchange shop and exchanged a quantity of Renminbi for about HK$11,000. He did some shopping, spending about $3,000 of that sum. The remainder he put in the right pocket of his trousers. That account I have taken from the victim’s statement.
The victim returned home by minibus and took the lift to his flat, arriving at about 4 p.m. He was aware that there was a man in the lift with him, but paid him no attention. That man was the defendant, who had seen him counting the money in the street after he had changed it, and had followed him home, including taking a trip on the minibus. The defendant followed Mr Lam from the lift to his front door. At the door he asked Mr Lam if the occupant of the premises was surnamed Lau and was told it was not. The defendant then said he was very thirsty and asked if Mr Lam could give him a cup of water. Mr Lam agreed, and both men went into the flat. Mr Lam gave the defendant a cup of water.
According to the Admitted Facts, after the accused had taken enough water the accused suddenly attacked the victim’s head with his hands. In mitigation there is some alteration to this. The defendant says that he tried to get the money first, and it was only when the victim resisted that he hit the victim very hard on the head. Mr Lam realised, however, that it was a robbery and struggled with the defendant for some time. The defendant kept hitting his head and parts of his body. Mr Lam felt dizzy and fell down. The defendant gagged him with a yellow and white towel, which he pushed into Mr Lam’s mouth. He then tied Mr Lam’s hands and tied both his legs as well. He pulled him to the floor outside the toilet. At that time he snatched $7,000 from Mr Lam’s pocket. By this time Mr Lam was unconscious and had collapsed on the floor.
Later the victim’s wife returned at about 5 o’clock and found Mr Lam struggling on the floor, still bound. The neighbours called the police. Mr Lau said that he had been robbed, and he was sent to hospital for medical treatment. A check of the house confirmed that nothing in the house had been taken. All that was missing was the $7,000 cash and the wallet which contained the victim’s identity card and Octopus card.
The police investigation included obtaining fingerprints and checking CCTV videotapes. As a result of the fingerprint check the defendant was arrested, and in a video interview he admitted that he followed the victim home after seeing him in the street counting and pocketing the money. He confirmed that he entered the house by asking for a drink of water, that he had assaulted the victim and gagged him to stop him shouting for help. The money that he had stolen had been lost some days later, at least in part, on the gambling tables of Macau.
I was advised by counsel in mitigation that he used some of the money to pay household expenses and accounts, but in fact that is not what he said to the police when he was interviewed.
As a result of the assault on him, the victim spent some 19 days in hospital. He received multiple injuries, including a head injury. There were multiple bruises over the head and the right forearm. There was a right subconjunctival haemorrhage, periorbital swelling and bruises. There was a fracture of the left side 5th rib, obvious from the X-ray. There were multiple abrasions and right periorbital swelling on his face. He was transferred to the Intensive Care Unit. The diagnosis was head injury with intraventricular haemorrhage and subdural haematoma; chest injury with fractured ribs and forearm injury. He received a short course of physiotherapy before he was discharged from hospital, and he was prescribed some outpatient treatment.
The defendant has a minor record which is of no real relevance to this particular case. His last offence was in 2003; a minor theft, for which he received a suspended sentence.
In mitigation I was advised the defendant is now 62. He has had very little education, up to Primary 2 or Primary 3. His work has been in factories and on construction sites. From about 2003 he was out of work almost permanently because many businesses closed. He used what savings he had to open a fruit stall, but he lost his money on the fruit stall. He had little money remaining, but that little he tried to gamble in order to recover further money. Unsurprisingly, he lost all his savings in a few months. His relationship with his wife deteriorated as a result. She moved out, and there was a divorce in 2004.
Since then the defendant has been living with and looking after his youngest son who is aged 19. Because of his own age he is unable to get work easily. He has brief periods when he is working, and earns about $300 a day if he does. He had been unemployed for 6 months before the incident. He had received two warning letters about non-payment of rent from the Housing Authority. Calls were being made to him to support his mother in Mainland China; she had fallen ill. His son was working, but he was earning low wages and was unable to contribute to the family expenses. The defendant began to borrow from finance companies and friends, and it was in this context that he committed the offence.
While in Correctional Services care he has been diagnosed with diabetes and high blood pressure. He indicated to the court that he was very remorseful, and counsel pointed out that he had never committed any offence of violence before. He pleaded guilty, and it was an early plea of guilty which shows his remorse. He has indicated his remorse and his apology to the victim. He has been fully cooperative throughout with the police. He said that he had no plan to do anything wrong that day, as an indication of that he had no weapons or other items that might be useful in a robbery. It was only when he saw the victim with the money that he began to follow him. Initially he had no intention to use force, but he was scared and confused and acted as he did. He asked for leniency. He claimed he committed the offence out of desperation.
When considering the starting point for sentence, the aggravating features of this robbery are that it was pre-meditated to the extent of the defendant marking Mr Lam out as a target and following him home, which was quite some distance away. He also invaded domestic premises, entering those premises by a trick. Once inside the defendant used significant physical violence on an 88-year-old man and engaged in a struggle with him, a struggle which lasted about 10 minutes. Although no weapon was used, I take the view that in terms of the victim’s age that would not have been necessary.
Even more seriously, the defendant stuffed a towel in Mr Lam’s mouth to gag him. That move alone could have led to the death of the victim given his age and his comparatively frail state. The defendant also bound the victim’s legs and arms. The struggle, lasting as it did some 10 minutes, could have triggered a heart attack, or some form of seizure in an elderly victim. The defendant made his escape with the cash, leaving Mr Lam bound and unconscious on the floor. It was some time before the wife came back and found him.
The Mo Kwong Sang guidelines, I note, are for offences where weapons other than firearms are used, and start at 5 years, increasing upwards according to other aggravating factors. The guideline for a “head bashing” robbery is 8 years. This robbery shares some features with the fact of HKSAR v Choi Chi Hung [2007] 2 HKLRD 409. The perpetrator in that case was the son of the elderly female victim. She had refused him money. He then forced his way into the house as one of the other residents left, pulled his mother from her bed, hit her several times on the back and took $300. The District Court judge adopted a starting point of 5 years and sentenced the defendant to 3 years and 4 months’ imprisonment.
On appeal against sentence, counsel submitted that the judge erred in taking a starting point as high as 5 years and contended that she had relied, wrongly, on R V Yau Kwok Tung [1987] HKLR 782 to support her assertion that the starting point for a robbery where no weapons were used or displayed was 4 years, when that, in fact, was the top end of the tariff for such robberies. In response, the respondent drew the attention of the court to R v Luang Po Chuen, (unreported), CACC107/1987 and R v Oi Ho Pa-yee, (unreported), CACC480/1993. Both were cases which showed that no such ceiling had been created.
The court, in Choi agreed that the judge had assessed correctly the aggravating features as the invasion of domestic premises, the use of violence and the advanced age of the victim. The court commented that it was a particularly cowardly offence of robbery, and the 5-year starting point could not be said to be manifestly excessive.
The instant case can be seen as even more offensive than that of Choi. The level of violence was more serious, the age of the victim was greater, the victim was bound, gagged and reduced to unconsciousness, and the victim had been followed as a target. There was a serious risk to the victim’s health and well-being because of the dangers, particularly to an elderly person, inherent in the gagging and the binding. The court in Choi repeated what has often been said and which bears repeating, that the factual basis for sentence in any particular case is unique, and references to judgments in other cases, even if of broadly similar circumstances but in which no guideline for sentence is expounded, are not of any particular assistance.
Given all the circumstances which pertain to this case - the targeting, the invasion of premises, the level of violence, the age of the victim, the absence of restitution and the serious medical consequences, I consider that this offence is more akin to a head bashing case and that a proper starting point for sentence should be 8 years. That should be increased to 9 years to take into account the gagging, binding and abandoning of the unconscious victim.
I adopt a starting point for sentence in this case of 9 years. The only mitigating factor is the plea of guilty entered by the defendant. His motive for the robbery, as he told the police, was pure greed because he needed money to feed his gambling addiction. There has not been any restitution of the sum stolen, nor is there likely to be. The loss of $7,000 is not insignificant, particularly when it is lost by someone on a fixed income.
Accordingly, I give the defendant the full one-third discount for his plea of guilty and sentence him to 6 years’ imprisonment.