HKSAR v. Lee Kam Loi

DCCC 409/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 409 OF 2008

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of attempted robbery (charge 1); one charge of robbery (charge 2), contrary to section 10 of the Theft Ordinance, Chapter 210; two charges of assaulting a police officer (charges 3 & 4), contrary to section 36 of the Offences against the Person Ordinance, Chapter 212 and one charge of possession of Part 1 poison (charge 5), contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Chapter 138.

2.In summary both robberies took place in the early hours of the  9th March 2009, when the victims were walking home.  At 01:50 the defendant rode his bicycle past Mr Wong.  The defendant then alighted from his bicycle, grabbed Mr Wong from behind and declared robbery at the same time punching Mr Wong on his chest.  Mr Wong struggled with the defendant and succeeded in releasing the grip of the defendant.    Mr Wong ran to a nearby management office and reported the case to the management, who called the police. 

3.10 minutes later Mr Lam saw the defendant riding his bicycle.  The defendant stopped in front of Mr Lam.  As Mr Lam walked ahead the defendant suddenly dashed forward and pointed a scraper at Mr Lam’s neck.  The defendant declared robbery and demanded Mr Lam to surrender all his money.  Mr Lam handed over his wallet from which the defendant took $50 cash, an Octopus card, and two ATM cards. 

4.The defendant then took Mr Lam to a nearby ATM machine to withdraw $800 but was unsuccessful.  The second ATM card was used at a different bank but this time there was insufficient money in the bank account.  The defendant then took Mr Lam back to the first ATM machine to again try and withdraw money. 

5.At this juncture PC 33287 and Sgt 1514, who were responding to the call from Mr Wong, saw the defendant and intercepted him.  Mr Lam said the defendant robbed him whereupon PC 33287 declared arrest.   The defendant then punched PC 33287 on the chest in an attempt to escape.  When PC 33287 tried to stop the defendant he again punched the police officer.

6.Sgt 1514 used pepper spray to stop the defendant, who then turned round and tried to flee.  When the police officers prevented the defendant from fleeing a struggle ensued on the ground during which the defendant assaulted both officers with his elbows.  The defendant was eventually subdued after PC 33287 used a baton to hit the defendant’s right thigh.

7.During a search of the defendant three tablets of zopiclone were found from his right front jeans’ pocket.

8.In passing sentence I have carefully considered everything said on the defendant’s behalf by Mr Chu, including that the offences were committed because the defendant worried about the financial expenses of his family due to his unemployment.  Worried and unable to sleep the defendant took zopiclone as a result of which he says his self-control was lessened.  I note from the antecedents the defendant suffers from schizophrenia.  Whilst the defendant may have taken zopiclone he was still able to ride his bicycle when approaching his two victims and take Mr Lam to the ATM machines.  I do not accept the taking of zopiclone reduces in any way the defendant’s culpability(seeHKSAR v CHIU Peng, Richard [2002] 1 HKC 40).

Robbery

9.The starting point for unarmed robbery is generally no more than  4 years imprisonment (see HKSAR v LAM Ka-hung CACC 294/2003 and HKSAR v TSANG Wai-man CACC 288/2006).  Each case must however be decided upon its own particular facts and circumstances. Where bankcards are taken and subsequently used this can be regarded as an aggravating factor (see R v SUN Sheung-chung CACC 152/1993 as applied in HKSAR v YAN Wai-ming CACC 417/2002).

10.I am satisfied for the attempted robbery of Mr Wong, taking into account no weapon was used and only minimalviolence with no injuries the proper starting point after trial is 3 years imprisonment.

11.The robbery on Mr Lam however involved the use of a weapon the defendant pointing a scraper to the neck of Mr Lam.  In HKSAR v AU Chi-hang & others [2006] 2 HKLRD 310 the court considered whether iron and wooden rods were dangerous weapons and therefore fell within the guidelines for armed robberies laid down in R v MO Kwong-sang [1981] HKLR 610.

12.The Court of Appeal held that dangerous weapons should mean objects, which could be compared to a knife in terms of capability of inflicting immediate death or serious injuries in the course of robbery, so that faced with such an object, the victim could only choose between succumbing to the robber or sustaining serious injury.  The emphasis is on the degree of fear to which the object could make the victim subject.  Factors affecting the degree of fear include the nature (including the size and weight) of the object and the circumstances of the offence.

13.At my request the scraper has been produced to court.  Having had the opportunity of looking at the scraper I am satisfied this is clearly a dangerous weapon which could have caused serious injury.  Mr Lam must have thought so as he easily succumbed to the demands of the defendant and even accompanied him to the ATM machines.  Although Mr Lam suffered no injury taking into account that in the early hours of the morning the defendant pointed the scraper to the neck of Mr Lam,  I am satisfied the proper starting point after trial is 5 years imprisonment.

Assaulting police officers

14.The defendant in an attempt to evade arrest assaulted PC 33287.  Pepper spray did not stop the defendant, who continued to struggle and used his elbows to assault both PC 33287 and Sgt 1514.  Only when PC 33287 used his baton was the defendant eventually subdued.  This was a violent struggle put up by the defendant.  Fortunately the injuries sustained by the two officers are minor.  Immediate imprisonment is appropriate for those who assault police officers (for example see HKSAR v Rai Binay HCMA 598/2006).  I am satisfied the proper starting point after trial on both charges is 3 months imprisonment.

Possession of Part 1 Poison

15.The defendant has two previous convictions for possession of Part 1 poisons to which he received financial penalties.  In HKSAR v CHAN Tak-shing HCMA 598/2006 the court held that a starting point of    3 months imprisonment was appropriate for a second conviction where the defendant was in possession of 4 tablets of zopilclone.  I am satisfied the proper starting point after trial is 3 months imprisonment.

16.Giving the defendant full credit for his pleas of guilty he is sentenced as follows:

Charge 1 - 2 years imprisonment;

Charge 2 - 3 years and 4 months imprisonment.

The two robberies, whilst committed only 10 minutes apart, are separate and distinct, committed on two separate victims.  Consecutive sentences are appropriate.  Taking into account totality of sentence I order 8 months on charge 1 consecutive and 1 year and 4 months concurrent to the sentence on charge 2.

Charges 3 & 4 - 2 months imprisonment on each charge. 

These properly should also be ordered to be served consecutively as they were assaults on two different police officers.  However taking into account totality of sentence I order these two sentences to be served concurrent.  The assaults are however entirely separate and distinct from the robberies and therefore I order the 2 months to be served consecutive to charges 1 & 2.

Charge 5 - 2 months imprisonment.

The possession of zopiclone is also entirely separate and distinct from the robberies and assaults.  I therefore order the 2 months to be served consecutive to charges 1 - 4.

17.I am satisfied a total sentence of 4 years and 4 months imprisonment properly reflects the defendant’s criminality on these five charges.