HKSAR v. Lee Ming Yin

DCCC423/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.423 OF 2010

---------------------------

Reasons for Sentence

1.The defendant faces one amended charge of attempted robbery, contrary to s.10 of the Theft Ordinance, Cap.210 and s.159G of the Crimes Ordinance, Cap.200. It is alleged that the defendant on 8^th December 2008, at Yuen Fat Collection Depot, Lot No.1485 in DD117, Tai Tong Shan Road, Yuen Long, New Territories, in Hong Kong, together with a person unknown, attempted to rob Li Qing Dao, Fung Kai Man and Wong Chun Wah.

2.The defendant pleaded guilty, admitted to the amended summary of facts and was duly convicted.

Facts

3.At all material times, Fung Kai Man (PW1), aged 25, and Wong Chun Wah (PW2), aged 28, were the attendants working at Yuen Fat Collection Depot, which was engaged in collecting and trading used tires. Li Qing Dao (PW3), aged 52, is a cousin of the owner of the Depot. At the material time, PW3 was residing at the Depot.

4.At about 1pm on 8^th December 2008, while PW1 and PW2 were working inside the Depot, they noticed someone standing outside the gate of the Depot. When PW1 and 2 went to the gate, the defendant and an unknown male pushed them into the container office next to the gate inside the Depot.

5.PW1 and 2 squatted on the floor facing the wall and were told not to move or make any noise while the defendant tied their hands behind their backs with adhesive tapes. The defendant and the male also demanded PW1 and 2 to keep their heads down and not to look around. PW1 and 2 were frightened and complied.

6.The defendant and the male asked PW1 and 2 whether there were other person in the Depot. PW1 told them that PW3 was also in the Depot. One of them stayed inside the container office and guarded PW1 and 2 while the other went to search around and found PW3 inside another container in the Depot. PW3 was grabbed by his neck and a mone meter long T-bar was pointed at him while he was brought into the container office where PW1 and 2 were. The defendant and the male also told PW3 to keep his head down and not to move. PW3 was scared and complied.

7.After the defendant tied PW3’s hands behind his back with adhesive tapes, he and the male asked PW1 and 3 where the money of the Depot and the car key to a private car (parked inside the Depost at the time) were kept. After PW3 handed over a bunch of keys of the Depot to the defendant and the male, one of them went outside the container office while the other remained to guard PW1 to 3.

8.At about 1:15pm, a regular customer of the Depot, Liu Ji Jin (PW4), aged 36, and his driver, Wong Kin Man (PW5), aged 53, delivered a truckload of used tires to the Depot. As no one opened the gate after PW5 honked his truck several times, PW4 alighted from the truck while PW5 waited on the truck. PW4 noticed that the gate was left ajar. When he pushed open the gate, PW4 was grabbed by his neck and a cutter was pointed at him while being brought into the container office where PW to 3 were. There the defendant and the male told PW4 to squat and not to move. PW4 complied. The defendant did not tie PW4.

9.PW5 waited on the truck for a while and felt strange that no one came to open the gate. So PW5 also alighted the truck to check. As soon as he pushed open the gate, he was pointed with a 60cm iron wrench and brought into the container office where PW1 to 4 were. Once inside, PW5 told the defendant and the male that he had to retrieve his bag from the truck. When PW5 hopped on to the truck, he immediately drove away. The defendant and the male chased after PW5’s truck but when they failed to catch up with it, they fled and disappeared. PW5 made a report to the police.

10.After the defendant and the male were gone, PW1 to 3 removed the adhesive tapes which were tying their hands. At this juncture, the police arrived. During investigation, the police recovered the 15cm cutter, the one meter T-bar and 5 pieces of adhesive tapes in the Depot, but not the 60cm wrench.

11.Fingerprints were lifted from the sticky side of the adhesive tapes which were used in tying up the hands of PW1 to 3 and they were found to match the right forefinger, right middle finger and right thumb of the defendant.

12.The defendant was arrested on 14^th May 2009.

Previous

13.The defendant has 16 previous convictions, out of which 3 are related to dishonesty. The defendant’s last criminal conviction was on 19^th October 2009 when he was sentenced to 10 years and 8 months’ imprisonment for trafficking in dangerous drugs.

Mitigation

14.The defendant is 34, born in Hong Kong, educated up to F.1 level in Hong Kong. The defendant had worked as delivery worker before.

15.Since about 23 the defendant has been in and out of prison. The defendant was born in Hong Kong but was brought up in various different orphanages. His twin brother was also in the orphanage. The first place he was brought up in was Po Leng Kuk. When he and his twin brothers were about 10, they were transferred to the Salvation Army Orphanage, a few years later to Yau Yat Chuen and then when they were 16 they were transferred to Holland Orphanage. During those periods there had been no problems and the defendant received education up to form 1 level.

16.When the brothers were 17, the government gave them a unit in Lei Muk Shue Estate. The defendant began working and his first job was as a car attendant. Unfortunately, through this job he got to know people who were bad characters. The defendant was still managing during first few years, but when he was around 23, he became involved in drugs and his life took a downturn.

17.Worse still, the defendant’s twin brother left him. It’s been 10 years he last saw him. Since then, the defendant’s life went out of control and he began to go in and out of prison.

18.After the defendant’s conviction in November 2007, there was a change in his life in that he met his girlfriend. There was a plan for them eventually to get married. Given his background, there was little means for him and the defendant was stupid enough to think that he could make some quick cash to settle down with his girlfriend.

19.Mr. Chung continued in his submission that, for this particular offence, when the defendant was first approached for the crime, he did not accept it. He was involved with drugs and committed petty crimes, but had never been associated with crime of this nature. Eventually those involved, knowing what he needed, managed to persuade him to take part.

20.The 16^th conviction in relation to trafficking in February 2009 was committed 3 months after the present offence. During that 3 month period, the defendant was desperate for money, in the hope that he could change his life with his girlfriend.

21.Since the defendant’s imprisonment, he has relooked at his life. Now he is a devoted Christian, praying regularly, he felt remorseful for his life in general. He has decided to turn a new leaf. He understands his girlfriend is now living in Singapore and there is indication that she will be waiting for him.

22.It is lastly submitted by Mr. Chung that, for the present offence, over 5 years’ starting point is appropriate, with the most obvious mitigating factor being the defendant’s plea of guilty. Mr. Chung also submitted that I must look at the principle of totality and if possible make part of the sentence concurrent so that the defendant can be released as soon as possible.

Sentencing guidelines

23.Sentencing guidelines for armed robbery cases were set in the case of Mo Kwong Sang v R [1981] HKLR 610:

“We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim should normally be five years.

If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate.

If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.

These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims; ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind.

These guidelines are intended to apply to those who are convicted after a trial. Thus the suggested sentences should be reduced by such amount as the court may think appropriate for a plea of guilty.

Nothing which we say, of course, should be construed as inhibiting a court from adjusting these sentences to accord with the record, age or other personal circumstances of the accused or from taking account of the particular facts of the case before it.

We realize that the adoption of this suggested level of sentence will mean that in some cases the appropriate sentence will be above the maximum which the District Court is permitted by law to impose.

Where a District Court would be disposed, had it power to do so, to impose a sentence exceeding seven years, the correct course would be for the judge to indicate what sentence he would have awarded if he had been able to do so and then to impose one of seven years' imprisonment.”

Sentence

24.In Mo Kwong Sang, the Court of Appeal made clear that by armed robbery, they refer to use of knives and other dangerous weapons but not to firearms. In our present case, a one meter long T-bar, a 15cm cutter and a 60cm iron wrench were used to threaten the various victims.

25.This attempted armed robbery involved a blatant invasion of private business premises which was the Depot. Physical violence in the form of tying up PW1, 2 and 3’s hands behind their backs with adhesive tapes and the grabbing of PW4’s neck by one of the robbers were used. The defendant did not act alone but with an accomplice.

26.The defendant has a lengthy criminal record starting from when he was around 23, culminating in the last conviction in 2009 when he was sentenced to 10 years and 8 months' imprisonment for trafficking in dangerous drugs. The defendant committed that offence 3 months after the commission of the present attempted robbery. In all, he has 16 previous convictions out of which 3 are related to dishonesty.

27.While I have full sympathy for the defendant’s personal background, but being an orphan does not necessarily mean one has to give up on one’s life. There are numerous examples of successful and respected individuals who shared the same unfortunate beginning as the defendant. This is not an excuse to resort to crime.

28.Bearing in mind the gravity of the circumstances of this case and the guidelines set down in Mo Kwong Sang, I will adopt a starting point of 7 years and 6 months' imprisonment, reducing that by 1/3 in recognition of the defendant’s guilty plea and sentence the defendant to 5 years' imprisonment.

Totality

29.The trafficking and the attempted robbery offences were committed in close succession to one another. The two cases are unrelated. I order that the sentences be served wholly consecutively.

Application to leave to appeal against sentence by the defendant to Court of Appeal granted. Please refer to CACC332/2010 dated 26 January 2011