HKSAR v. Ng Wai Hang and Another

DCCC167/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 167 OF 2010

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Reasons for Sentence

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1.D1 and D2 are jointly charged with 1 offence of "Robbery". They both pleaded guilty.

Summary of Facts

2.At the material time, Mr. SAE LAO (PW1) was the proprietor of a number of ornament shops in Hong Kong. One of his shops was situated at Sino Centre in Mongkok.

3.In the late evening on 1 January 2010, PW1 went home to Tseung Kwan O from Yau Ma Tei by taking the MTR. He alighted at Po Lam Station shortly before 1:00 am on 2 January 2010 and walked home. As he was walking along a quiet pedestrian path outside King Lam Neighbourhood Community Centre situated at Po Lam Road North, PW1 was suddenly hit on the back of his neck. He instantly lost consciousness and fell onto the pavement.

4.PC 10157 (PW2), who was then off-duty, was walking on the same road about 10 metres ahead of PW1. Some noises from behind caught his attention. He turned around and saw PW1 being pushed onto the ground by D2. At the same time, D1 took away a bag from PW1. Then both defendants ran away. PW2 immediately declared his police identity and pursued them.

5.In the course of his escape, D1 discarded PW1's bag and other stolen items. Soon after that, D1 slipped and fell and was subdued by PW2. D2 managed to run away.

6.D1 was arrested by PW2. Under caution, D1 admitted snatching PW1's properties but denied having assaulted him. In his cautioned interviews, D1 claimed that on 1 January 2010, a friend named NG Ka-kit asked him to meet up in Yau Ma Tei that evening. When they met, NG Ka-kit told D1 that they would assault PW1 together. They followed PW1 to the pathway outside Po Lam Station, where NG Ka-kit punched PW1 and kicked him in his head.

7.Based on the call records of and information provided by D1, the Police identified D2 as NG Ka-kit. He was arrested at his home on 14 January 2010. Under caution, he remained silent. In an identification parade held on 22 January 2010, PW2 positively identified D2 as one of the assailants who attacked PW1.

8.Except one wrist watch, all the stolen properties particularized in the Charge were recovered by the Police at the scene. The injuries sustained by PW1 include bruising and swelling at the right periorbital area and abrasion on his nose, lips and right cheek. He was hospitalized from 2 to 12 January 2010.

Mitigation & Sentence

9.D1 is now 24 and has a clear record. He is a phone repairman and earns about $7,000 per month.

10.In the course of mitigation, Mr. WU submitted that D1 is remorseful and has decided to plead guilty at the outset. A letter dated 2 July 2010 (almost 3 weeks before trial) was sent to the Prosecution and court informing parties of D1's intention. Furthermore, D1 has provided useful information to the Police which led to the arrest of D2. Almost all the stolen items were recovered. No weapons were used and D1 did not plan the robbery.

11.D2 is now 27 and single. He has 1 previous record which involved 2 offences of violence.

12.Mr. LAM submitted that D2 has remained trouble-free in the past 8 years. He met his girlfriend Miss LEE in 2009. She is now 6 months pregnant. Mr. LAM explained that Miss LEE was employed by PW1 in June 2009 for 3 months. PW1 approached her for courtship purposes. She had a relationship with PW1 in September 2009. Then Miss LEE met D2 in November 2009. After Miss LEE has started seeing D2, she and PW1 still maintained contact. D2 was unhappy about it. On the other hand, Mr. TSUI for the Prosecution informed the court that Miss LEE has told the Police she did not work for PW1.

13.The contents of all the mitigation letters submitted by Mr. WU and Mr. LAM are noted.

14.According to the Court of Appeal's decision in MO Kwong-sang v The Queen [1981] HKLR 610, the appropriate sentence in an ordinary case of armed robbery where the accused carried a knife or other dangerous weapon which he displayed to his victim, should be 5 years imprisonment. If other aggravating factors are present such as invasion of domestic premises during the night, threats made to victims, ill-treatment of victims, the sentence should be increased. On the other hand, in HKSAR v TING Chiu & another [2003] 3 HKLRD 378 and Secretary for Justice v AU Chi-hang & others [2006] 2 HKLRD 310, the Court of Appeal held that the starting point for unarmed robbery should be lower than that for armed robbery. Robbery involving more than 1 culprit is an aggravating factor.

15.Based on D1's admissions and what Mr. LAM has said in mitigation, it is quite plain that this case involves a pre-meditated attack and robbery on PW1 orchestrated by D2, who also solicited the help of D1. They followed PW1 from Yau Ma Tei all the way to Tseung Kwan O; clearly they were not acting on a spur of the moment. With the consent of both defence counsel, I viewed the photographs which show PW1's injuries. The attack was no doubt a savage and brutal one. The injuries suffered by PW1 are serious.

16.According to the authorities, for an ordinary unarmed robbery, the appropriate starting point should be 4 years imprisonment. However, I see 2 aggravating factors in the present case: 2 culprits were involved and the victim was seriously injured. Hence, I will adopt a starting point of 5 years imprisonment. One-third discount is given for the guilty pleas, reducing the sentence to 40 months (3 years and 4 months). For D2, who has played a leading role, I see no other mitigating factors which warrant any further discount. Therefore, D2 is sentenced to 3 years and 4 months imprisonment. For D1, his frank admissions and supply of information led to the arrest of D2. I will give him some credit for this. Accordingly, I will further reduce his sentence by 4 months. D1 is sentenced to 3 years imprisonment.