HKSAR v. Lam Hing Kai

HCCC26/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 26 OF 2010

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

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COURT:  The defendant, Lam Hing-kai, faced one count of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210.

The defendant pleaded guilty to the charge before a magistrate and was committed to be sentenced in the Court of First Instance of the High Court.  The defendant confirmed his plea and the Summary of Facts before me.

The Summary of Facts

The robbery took place in December 2003.  The facts disclosed that the victim was a prostitute of a one-woman brothel situated in South Wall Road, Kowloon City.  The defendant posed as a customer and obtained sexual service from the victim before robbing her.  He did so by producing a cutter and a roll of adhesive tape when the victim was getting dressed.

When the defendant tore off a piece of the adhesive tape to cover the victim’s mouth, he accidentally cut his own hand with the cutter.  The victim then applied the tape onto her mouth upon the defendant’s instruction, and remained in the bedroom.  The defendant then ransacked the flat and took away $1,800 cash and a mobile phone.  The defendant told the victim to remove all her clothing before he fled the scene.

The victim made a report to the police afterwards.  She did not sustain any injury. 

As the defendant had used a condom during sex and a towel to stop the bleeding, police seized these two items for analysis.  Police also recovered a palm print from a clothes rack in the sitting room.  Further, the appearance of the defendant was captured on the CCTV installed for the premises.

It was only in late 2008 that the palm print was found to match the defendant’s right palm print, and the DNA found in the condom and the towel were also matched the DNA of the defendant.

The defendant admitted using a cutter to rob a prostitute in Kowloon City back in 2003, as he was in debt to others and he did not have any money.  This is after he was arrested.

During a video-recorded interview under caution, the defendant gave further details of how he came to commit the robbery.  In gist, he said he owed someone some $30,000 gambling debt, and decided to rob a prostitute.  He did bring the cutter with him, but the roll of adhesive tape was already inside the premises.  He said he took away cash of $1,000 and a mobile phone before he fled the premises.  He sold the mobile phone for $1,200.

The Background and Mitigation

The defendant is a 32-year-old man with one previous conviction of managing a vice establishment for which he was sentenced to 3 months’ imprisonment in 2005.  As the present offence was committed at the end of 2003, the defendant had a clear record at that stage.

Mr David Boyton, counsel for the defendant, informed the court that the defendant committed the offence as he was owing loan sharks gambling debts.  The circumstances of the offence, with the defendant cutting himself in the process, showed that he was rather amateurish.  Although he denied the offence when he was arrested for the offence of managing a vice establishment and his palm print was found to match the one found at the premises, he later did contact the police and surrendered himself.

Mr Boyton asked me to consider giving the defendant a discount slightly over and above the usual one-third for plea.  Mr Boyton also stressed that the defendant had pleaded guilty at the earliest opportunity and fully co-operated with the police after he surrendered himself.  He also told the court that the defendant is very remorseful.

The defendant himself and his family have also written to the court asking for leniency.

The Sentence

In the case of Mo Kwong Sang (1981) HKLR 610, the Court of Appeal set down guidelines for armed robberies.  As correctly set out in the headnote of that case, the appropriate sentence in an ordinary case of armed robbery, where the accused carried a knife or other dangerous weapon, (excluding firearms), which he displayed to his victim, should be 5 years’ imprisonment.  If such a robbery also involved an invasion of private premises, a sentence of 6 years would be appropriate.  If physical violence, including tying the victim up, is used, a sentence of 7 years should be considered.  If other aggravating factors are present such as invasion of domestic premises during the night, threats made to victims, ill-treatment of victims, multiplicity of offences of a similar kind, or more than one person taking part in the robbery, the sentence should be increased.

In the present case, the defendant posed as a customer to gain entry into the victim’s flat, which was used as a one-woman brothel.  He first obtained sexual services before robbing the victim with the use of a cutter.  He also restrained the victim by having adhesive tape over her mouth to stop her from making a noise, and he made the victim strip before he fled from the scene.

All these amount to aggravating factors which I am entitled to take into account in imposing the sentence.  See the case of HKSAR v Choi Kuk Shek, Kendy & Anor CACC544/2002.

The victim was a vulnerable target of robbery because of her profession, and should be protected.  See the case of HKSAR v Cheng Fuk Wa CACC442/2005.

I am aware that the defendant was a man of clear record at the time of this offence.  However, as rightly pointed out by Mr Boyton, when a defendant is convicted of a serious offence such as this armed robbery, his previous clear record would not assist him much.

Having considered all the circumstances of this case and the defendant’s background at the time, I am of the view that a starting point of 6½ years is appropriate.  The defendant pleaded guilty at the earliest opportunity, and I will give him the usual one-third discount.  Despite the eloquent submission by Mr Boyton, I am not persuaded that the defendant is entitled to a further discount by giving himself up to the police.  Such surrender was done after he was confronted with his palm print at the premises and after he made a complete denial.

Using a starting point of 6½ years, the sentence is one of 4 years 4 months after a one-third discount.

So for the offence of robbery, the defendant is sentenced to 4 years 4 months’ imprisonment.