CRIMINAL CASE NO. 304 OF 2009
As the woman walked passed she was pushed into the vehicle by the man who was standing next to it and pulled into the vehicle by the man sitting in the rear. She resisted but was pressed on to the floor of the rear compartment and her head covered with her jacket. The vehicle then drove off.
Inside the vehicle the man sitting in the rear punched the victim in the head, face and back telling her to keep quiet. The more she struggled the more she was punched until she became feeble and was subdued. Only then did the punching stop. Amongst the injuries occasioned to the victim were fractured nasal bones, a swollen bridge of the nose with bruising, and bruising to her right shoulder and right neck.
Once she had been subdued the male in the rear pulled the victim onto the rear seat and told her they only wanted money and would not touch her. He then asked her to disclose the PIN of her Visa cards. When she explained she did not know them, he asked her for the PIN of her bank card and how much was in the account. The victim gave him the PIN. After about 30 minutes the man in the front alighted and, after a while, the male in the rear seat called him by telephone asking why it was taking so long. It later transpired that at 11.59 pm that night, $19,000 was withdrawn from the victim’s bank account at an ATM machine.
By that time the victim had been abducted by the men for about half an hour. When the man in the front seat returned, the man in the rear instructed the male who was driving to go to the place that he had been told before. The vehicle then drove off. About 15 to 20 minutes later the victim was taken out of the vehicle by the man in the front seat and into a public toilet on the Tsing Mun Road. Her head was all along covered by a jacket but her hands were not tied. She was told she could come out when there was no more noise outside.
The victim did as instructed and about five minutes later emerged from the toilet and sought assistance from a car park attendant in a nearby car park. A report was then made to the police and she was subsequently medically examined at 1.38 am on 24 February.
Apart from the $19,000 which was removed from her account, the victim lost her handbag and its contents which included her wallet, keys, two mobile telephones, an Ipod, cosmetic bag, her identity card, driving licence and Octopus card, five credit cards, a bank card and $500 in cash.
The defendant was arrested on 27 January 2009 and immediately admitted that he had had a hand in the crime, although he did not, in fact, plead guilty to the offence or indicate his intention of doing so until the first day of this trial. He further admitted that he was the male in the rear of the car and it was he who had punched the victim to obtain her PIN. He said he received a share of $7,000.
After a plea was taken on 16 August this year, the matter was adjourned pending the taking by the prosecution of a witness statement from the defendant. That was subsequently done and I have read the witness statement he gave on 23 August 2010 with a view to testifying against others involved in this offence.
On 28 September this year the prosecution informed me that they did not feel able, for reasons Mr Man explained, to rely on that statement and the defendant would not be a prosecution witness in any future proceedings. As the Court of Appeal has made clear courts can only sensibly act on information offered or assistance given which has, in fact, proved of use in some positive way to the authorities. The defendant’s statement has not provided any real assistance nor is it likely to lead to any tangible result. Accordingly, I cannot give it any consideration in the sentence that I pass.
Mr Yu, in addressing the appropriate sentence which I should consider in your case has drawn, on your behalf, my attention to HKSAR v Wong Ching-chiu, Criminal Appeal 302 of 2006 which makes it clear that, generally speaking, the starting point for robbery in a public place, without displaying a knife or other weapon, is 4 years’ imprisonment. To that base starting point, however, must be added such features as go in aggravation of the starting point.
In this case there are several aggravating features. This was a planned, premeditated robbery of a single, lone, woman late at night by a gang of men. In no way could it be described as an opportunistic crime committed by a single individual out of temptation or desperate circumstances or because an opportunity suddenly presented itself.
Whether the victim in this case was identified beforehand for some reason known to her assailants or whether she was random and happened to be in the wrong place at the wrong time, I do not know. However, there is nothing to suggest that there was any previous history or relationship between the robbers, or anyone connected with the robbers, and the victim. That it was planned is nevertheless obvious and it was executed at a time when the victim was on her own and vulnerable, late at night, as well as outnumbered by three men.
She was effectively abducted in a private car and taken away from her familiar surroundings for what, on the timings I have earlier given, was over three-quarters of an hour. It does not take any imagination at all to think what must have been going through her mind in those circumstances and how terrified she, or any woman of her age and circumstances, must have been to be abducted by three unknown men.
She was subjected to a vicious assault in which, with her head covered by her own jacket, she was punched in the face and head and back until she became feeble and was subdued. As I have mentioned, in the course of that assault, which you, the defendant, have admitted was carried out by you and you were the only one in the rear compartment with the victim, her nasal bone or bones were fractured and bruising was caused around the bridge of her nose as well as to her right shoulder and right side of her neck; although I accept, as Mr Yu has submitted, that the injuries sustained by her were not permanent. Although the victim was not tied up she was abducted in a car from which she could not escape and subjected to a particularly nasty assault in order to pacify her.
You were also the one who requested her PIN so that money could be removed from her bank account through an ATM machine which was the purpose of this abduction. In HKSAR v Chung Ka-hung Criminal Appeal 349 of 2008, the Court of Appeal in a case involving facts not dissimilar to this case - albeit, there were in that case two robberies and not one - held that this fact constituted a materially aggravating feature and cited, with approval, a passage from R v Sun Sheung-chung Criminal Appeal 152 of 1993 in which Bokhary JA, as he then was, said this of such cases:
“Where bank account operating material is extracted along with other property then this is the position. First, the potential for loss to the victim is increased possibly very considerably. Secondly, the potential for gain to the criminal is correspondingly increased. Thirdly, the sense of violation suffered by the victim is, it is not difficult to imagine, heightened and fourthly, the period and scope of the criminal activity involved is extended.
This bank account feature, as we will term it, is appearing with mounting and alarming frequency in robbery offences against householders and others. The time has come to warn malefactors, and this warning will become more and more firm as time passes if this sort of thing continues unabated, such a feature is a considerable element of aggravation and it will attract additional punishment as a result.”
There is one final matter which I have given consideration to as a final feature of aggravation. For a man of your age you have an appalling record of violence and, in particular, robbery. You have previously committed, by my computation, and been sentenced for 7 previous robbery offences, the last one being heard by the High Court for which you were sentenced to 5 years and 4 months’ imprisonment on 19 March 2004, and which I am told, was upon your plea of guilty.
You have otherwise been dealt with over the years for two cases of wounding, one of them in May 2002 with intent, two cases of assault occasioning actual bodily harm, three offences of attempted burglary as well as offences of false imprisonment, blackmail, criminal intimidation and theft. Yet you are only 28 years of age.
It is clear to me that you are not only disruptive; you are a dangerous person to be on the streets and I have given serious consideration to whether your record of similar offences, and the fact that you have not so far learned any lessons from the way you have been dealt with by the courts in the past, merits an enhancement of your sentence.
I am conscious of the sentencing principle that a man should not be sentenced on his criminal record, but you have a record of persistent commission of robbery offences which not only shows a contempt for the sentences passed upon you, but a persistence of serious similar and violent conduct from which the public should be spared.
However, in relation to this matter I have been persuaded, not without hesitation, by the material placed before me by your counsel, Mr Yu; in particular, your expression of remorse and contrition in your letter to the court - perhaps also exemplified by your donation and the helpful support of Father Weatherston - that you have perhaps, at last, resolved to change the course of your life and lead a decent law abiding life in future.
Your good intentions, which are, no doubt, prompted by the birth of your own daughter and your new found faith, lead me to the conclusion that it would not be appropriate to regard your appalling criminal record of similar offences as an aggravating feature in this case. I trust I will prove to be justified in taking that somewhat generous view. Had I not been persuaded I would have adopted a starting point even higher than the one I intend to adopt.
Bearing in mind this is not a robbery involving dangerous weapons but giving effect to all of the aggravating features I have identified, the starting point I would have adopted after trial in the event of your conviction is one of 8 years’ imprisonment. I will give you a one-third discount as a result of your plea of guilty, albeit on the first day of this trial. That brings your sentence down to 5 years and 4 months’ imprisonment.
For the restitution of the money stolen from the victim which was presented by cashier order to the prosecution this morning and which represents the total taken from her account, albeit not the total amount of valuables removed from her person in this robbery, I shall discount your sentence by a further four months.
The sentence I pass upon you is, therefore, one of 5 years’ imprisonment.