HKSAR v. Ngai Wing Bong

DCCC451/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 451 OF 2010

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of attempted robbery, contrary to section 10 of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200.

2.The facts admitted by the defendant revealed that in the evening of 26 March 2010, while PW1, aged 68, was playing musical instrument in his laundry shop which was situated on the ground floor of Sunshine City, Ma On Shan, the defendant suddenly appeared and used a knife to point at PW1’s throat and shouted, “Robbery”. PW1 injured himself sustaining a 2-cm laceration on his left thumb and a 1-cm laceration on his left index finger when trying to push the knife away. As PW1 told the defendant that he only had tens of dollars, the defendant fled without taking away any money.

3.A report was then made to the police. When the defendant was arrested in Ma On Shan, he still had the knife with him in his trousers pocket. Under caution, the defendant admitted the offence.

4.After hearing the mitigation put forth on behalf of the defendant, I sought clarification from the prosecution and it was confirmed that PW1 failed to pick out the defendant in a subsequent identification parade.

5.Mr Hui submitted that, in the circumstances, the entire prosecution case hinged upon the defendant’s own confession.

6.The defendant is aged 24. He is the eldest son in the family. After completing Form 5 education, the defendant took up a further year’s full-time commercial course. He then started working as a property agent, waiter, delivery and warehouse worker. Prior to his arrest, the defendant was a kitchen assistant, earning about HK$3,000 to HK$4,000 per month.

7.He has one previous conviction which is “using a false instrument”. For that, he was sentenced on 11 May 2007 to 6 months’ imprisonment, suspended for 24 months.

8.In mitigation, letters written by the defendant, his family members, his relatives and friends were submitted to the court. The defendant was described as a shy, introverted, kind and caring person who has not displayed any violence previously. It was said that the commission of the present offence was completely out of character.

9.Mr Hui for the defendant told the court that it was out of desperation and stupidity that the defendant committed the offence as he wanted to get money for his girlfriend who is a mainlander living in Shenzhen. Mr Hui said, however, as matters progressed, the defendant was actually scared away by PW1. What was said to have happened was that when PW1 pushed the defendant’s knife away, PW1 injured himself and was bleeding. On seeing PW1 bleed, the defendant was afraid and he apologized to PW1 and fled without taking any money.

10.It was also said that in the course of escape, the defendant sustained some injuries himself. He went back home to get money to seek medical treatment, but he was then stopped by the police on the way and was arrested.

11.Mr Hui emphasized that the defendant is truly remorseful. He confessed to the offence from the very beginning and he pleaded guilty at an early stage. Mr Hui said that as the defendant feels sorry for PW1, arrangements are made for a sum of HK$10,000 to be paid to PW1 as compensation. However, as the defendant committed the offence in order to get money for his girlfriend and he has been detained afterwards, it would appear that the compensation money would likely have come from his family members. Whatever the situation, I accept that the defendant feels sorry for PW1 as he apologized to PW1 at the time and it was said that he offered his apologies to PW1 during the video-recorded interview as well.

12.Mr Hui told the court that there is strong support from the defendant’s family and the likelihood of the defendant re-offending would seem to be low. A lenient sentence was therefore asked for.

13.After hearing the mitigation, I adjourned sentence to today in order to obtain a background report on the defendant. It was revealed in the report that the defendant had already borrowed HK$30,000 from his friend and another HK$30,000 from a lending company in January 2010 in order to help the girl in the mainland who was his first girlfriend. However, in March this year when the girl met the defendant again, she told him that she was still in need of money.

14.Being hard pressed for the money by the girl’s aunt on the day in question and fearing that his girlfriend might be forced to become a prostitute, the defendant took a knife from his home and went to rob the laundry shop downstairs.

15.The defendant’s mother told the social worker that initially, the defendant was still worried about the girl and he asked her to telephone the girl. The defendant’s mother said, however, as time went by, the defendant realized that he might have been cheated by the girl.

16.The suggestion that the defendant only committed the offence out of desperation and out of his eagerness to find money for his girlfriend would appear to have been borne out by the facts for otherwise it is difficult to understand why the defendant would have chosen to rob a laundry shop on the ground floor of his home premises when his day-to-day presence in the vicinity would easily expose him to be identified by PW1.

17.It is also noted that the robbery was carried out in an amateurish way as the defendant was still carrying the knife with him, instead of disposing it immediately after the robbery, when he went to seek medical treatment.

18.In sentencing, I bear in mind that robbery is a serious offence and has to be deterred. Applying the guidelines laid down in R v Mo Kwong Sang [1981] HKLR 610, I consider that a starting point of 6½ years to be appropriate in this case given that the defendant had used a knife to point at the throat of the 68-year-old PW1 which was a very dangerous act, that PW1 indeed sustained some injuries although not very serious ones, and that there was an invasion of private premises.

19.The defendant pleaded guilty to the offence and he will be given a one-third reduction for the plea. Therefore, the 6½ years’ starting point will be reduced to a term of 52 months. I am going to give the defendant further credit for making frank confession to the police from the start. Such shows the remorse of the defendant and as pointed out by Mr Hui, without his own confession, it might be difficult to successfully prosecute him.

20.Having considered all the relevant facts, the defendant’s background, his confession and all the matters urged on his behalf in mitigation, I am going to further reduce the term of 52 months to one of 46 months.

21.Defendant, stand up. You are therefore to serve a term of 46 months’ imprisonment.