CRIMINAL CASE NO. 364 OF 2011
COURT: These defendants pleaded guilty at committal on 13 September 2011 to a number of charges. D1 pleaded to two charges of robbery where he was the sole defendant, one charge of robbery where he was jointly charged with the 2nd defendant and one charge of wounding with intent, contrary to section 17A of the Offences against the Person Ordinance, again, jointly with the 2nd defendant. The 2nd defendant pleaded guilty to Charges 3 and 4 where he was charged jointly with D1.
Before me today, they confirmed their pleas and confirmed also the facts that they admitted before the magistrate.
In Charge 1, the 1st defendant, apparently under the influence of drugs, robbed a shopkeeper of a mobile phone and a Bluetooth headset and forced the victim to change the SIM for him. During the robbery, he claimed he was a member of the 14K. He used a 25 centimetre long knife to threaten the victim and, at one point, stabbed the victim’s right wrist. The 1st defendant left the shop, threatening to return if the victim caused trouble.
The victim received two stitches for the 0.5 centimetre stab wound and was discharged from hospital the same day.
Charge 2 related to the robbery of an optical shop. Again, the 1st defendant was believed to have been under the influence of drugs. He requested lenses at a low price, claiming to be a member of the 14K and said that if the victim did not comply, he would be chopped. Eventually, he took a 45 centimetre long knife from his shoulder bag and swung it around. He left after 30 minutes in the shop, taking with him a pair of Gucci sunglasses worth $1,880.
In Charge 3, both defendants went to a hotel in Nanking Street, accompanied by two other males. All four wore surgical masks. The male who was taking the lead asked a female staff member, PW4, where Room 26 was, then suddenly took out a 30 centimetre long knife and chopped her three or four times. PW4 used her left arm to defend herself and PW5, another female staff member, shouted for help.
The same male tried to pull out the CCTV cable and used the same knife to chop PW5. The male took money from the drawer of a cashier’s counter and put it in his pocket. He kicked the doors of Rooms 16 and 18 and left through the main door, followed by three men, two of them being the 1st and 2nd defendants, all of whom held wooden poles. D1 assisted in the robbery by telling PW4 and PW5 not to shout. D2 and the fourth male did not do anything in particular. After the group left, it was found that cash of $10,341 had been stolen.
PW4 suffered abrasions over her left forearm and right thigh and a 5 centimetre laceration on her left hand. She was admitted to the Department of Orthopaedics and Traumatology and an emergency operation was performed. There was a complete cut of the extensor of the middle, ring and little fingers, a fracture at the base of the third and fourth metacarpal bones and a laceration on the distal forearm, reaching the subcutaneous tissue. Tendon repair, metal wire fixation of the fractures and suturing were performed and PW4 was discharged from hospital on 18 October 2010.
PW5 was also admitted to hospital with a 5 centimetre cut wound over her scalp and a 10 centimetre cut wound over the left upper arm. An emergency operation was performed. There was a 70 per cent cut of the radial nerve and lacerations of the muscles of the left arm. The radial nerve and muscles were repaired and the scalp wound was sutured. She was discharged on 18 October 2010.
Charge 4 was a wounding case. A security guard, PW6, who was outside a games centre, saw D1 and a male known as Fong looking very angry beside the automatic change machine. They shouted at the staff. When PW6 approached, the man asked him to go outside. D1 was seen to put his hand inside the bag he was carrying and Fong tried to stop him. Suddenly, D1 pushed PW6, then he and Fong struggled with PW6. D1 was holding a 35 centimetre knife and stabbed PW6 with it. PW6 used a chair to defend himself. Fong used a chair to hit PW6 and D2 joined in the assault. After some time, Fong and the 2nd defendant fled and, later, the 1st defendant fled with his knife.
PW6 had stab wounds on his left anterior chest, his right lower chest, his right arm and right leg. In the Surgical Unit of QEH, a physical examination revealed abrasions over his right face, superficial lacerations on the left arm, left elbow, left leg, left knee and right chest and a deep laceration to the left chest wall. He suffered a small left pneumothorax and a small amount of left haemothorax. All laceration wounds were sutured and he was discharged on 21 October 2010.
The CCTV apparatus at the games centre recorded the incident and showed the two defendants and Fong attacking PW6. D1 was seen to stab him with a long knife; D2 was seen to kick him; and Fong was shown using a chair to hit him.
The defendants were arrested on 19 October 2010 at the Panda Hotel. D1 resisted strongly but was subdued. He was in a confused state and appeared to be under the influence of drugs. Eventually, he was found to be in an overdose condition and was sent to hospital.
In the room was found a black shoulder bag which contained a 38 centimetre knife and sheath, five balaclavas, five pairs of black gloves and two 45 centimetre knives were found in the bedside drawer. In the bag carried by D2 were found three knife blades and a knife grinder. A pair of Gucci sunglasses was found on the windowsill of the room. A pair of sports shoes and socks belonging to D1 was seized. The DNA of D1 was recovered from one of the balaclavas and from the handle of one of the knives and bloodstains, which could have come from PW5, were found on the shoes and socks of D1.
Under caution, D1 denied the robberies of 12 and 17 October 2010. He claimed he was at the room where he was arrested to look for a friend and denied knowledge of any weapons.
D2 blamed D1 for the three knives, saying they were brought to the room by D1. He admitted that he, D1 and two others, went to the hotel to do a robbery three or four days before.
The 1st defendant admits and accepts that, on 12 October 2010, on two separate occasions, he stole a mobile phone and a pair of Gucci sunglasses as specified in Charges 1 and 2, and both defendants admit and accept that they stole cash of $10,341 by using force on the victims as specified in Charge 3. D1 and D2 accept that they unlawfully and maliciously wounded the victim as specified in Charge 4, with the intent to do him grievous bodily harm.
I have been advised of the results of the victims’ treatment and the prognosis for their health. The victim of the 1st count made a full recovery.
The victim of the 3rd count, Madam Chen Wan-xiu, was still on sick leave, had undergone two operations, suffered from a fracture of a tendon over her left hand, was still required to do physiotherapy and was still being followed up at Queen Elizabeth Hospital with another operation to be arranged for next year.
The second victim of the 3rd count, PW5, Miss Cheung Wah-nin, made a full recovery.
The victim of the 4th count, Mr Anek Gurung, had multiple injuries which resulted in scars of the chest wall, left arm and left leg. He was diagnosed as suffering from adjustment disorder. He suffered a permanent loss of earning capacity of 4 per cent. That was assessed by the Labour Department, and he is still under follow-up at Kowloon Hospital.
The report from Dr Ng Ka-man at the Department of Psychiatry, indicates that Mr Gurung had no psychotic symptoms but did have an adjustment disorder and he was treated with antidepressants, hypnotics and also treated psychologically by the clinical psychologist. There has been improvement in his condition and it is believed that his condition will continue to improve.
Both defendants have criminal records. The 1st defendant has 17 items on his criminal record. Items 1 to 6 involve offences committed as a juvenile and are not really relevant. Offences from the age of 16 years, however, involved offences of dishonesty, one criminal damage, one burglary, one theft, three robberies, for two of which he was sent to prison for 4 years and 8 months and 5 years respectively, and also offences of violence, common assault, two offences of assault occasioning actual bodily harm, and his latest offence was a section 17 wounding.
He also had, in addition, a conviction for membership of a triad society and one for possession of offensive weapons. His last conviction was for the wounding on 10 September 2010 which means he was released from prison very shortly before he committed the present offences.
D2 has convictions for trafficking in dangerous drugs, section 19 wounding and causing wasteful employment of police, as well as possession of Part I poisons. He has not been to prison for his offences but was sent to DATC for the last two offences after he was convicted on 20 September 2008.
In mitigation, I am advised that the 1st defendant is aged 31. He has sons aged 10 and 11 who live with him and his parents, the mother having died in September 2007. He and his father support the family. He admitted the offences, which is the major point in his mitigation. He also produced a letter to the court in which he reiterates his regret and remorse for these offences and asks for a chance. I have considered the matters raised in that letter.
He claim he was in the habit of taking No. 5 Erimin which he took to help him calm himself and make himself feel happier; unfortunately, it affects his judgment. Counsel pointed out that he had taken the mobile phone in Charge 1 and left his own telephone in its place which indicates a lack of premeditation, and points out that, in Charge 3, although he was carrying a pole, he was not carrying a knife.
However, this is not a major point in mitigation in relation to this charge because there were four persons involved, it was clearly a joint enterprise, and he must bear the consequences of the fact that one of those parties was carrying a knife.
Again, it was pointed out that in Charge 4, there was no premeditation, the argument with the guard erupted spontaneously and that the defendant lost control. However, serious injury was caused to the victim in this case.
The 2nd defendant is aged 34 years. He is single, lives with his mother and his sister and the sister’s son. He was educated to Form 1 and then took on jobs as a transportation worker, casual decoration and construction site worker. He has a history of drug abuse, starting with taking cough syrup since he stopped his schooling.
He came to know the 1st defendant in about 2009 through their mutual drug habit. For the 3rd count to which he has pleaded guilty, he said he did nothing more than hold the wooden pole after he gained entry to the hotel. Similarly, he joined in the fight which was not a premeditated matter and did not use any weapon in that incident.
Counsel pointed out that he had entered a plea of guilty which indicated remorse, that he was not the instigator of the two offences and played a relatively minor role in the two incidents. That is true, but again the same strictures apply: this was a joint enterprise and he knew well what was going on and chose to take part in it.
These are serious offences. In respect of the robberies, the Mo Kwong Sang guidelines set the starting point for a robbery with weapons, other than a firearm, where a single perpetrator takes part at 5 years with upward increases for aggravating circumstances such as display or actual use of the weapons, whether the offence takes place on private premises, whether the violence is unprovoked and whether threats are made.
In Charges 1 and 2, the 1st defendant entered two retail shops, each time being the worse for wear on drugs, carrying a large knife which he displayed and, on the facts on Charge 1, had actually used on the shopkeeper. In each case, he threatened the victims and promised reprisals if attempts were made to report the matter.
In the 3rd count, four men went into the hotel as a group, all armed with poles, one of them had a knife and two female staff members were viciously attacked in the course of the robbery. There was a claim that they were triads and they were clearly disrupting the business of the hotel. This was a joint enterprise situation.
Similarly with Charge 4, there was the use of a large knife, it was an unprovoked attack on a security guard, three people were involved in the attack and although it was not premeditated, the parties involved had no hesitation in joining in.
For the 1st defendant on Charge 1, I take a starting point of 9 years, discount that by one-third discount to note the plea of guilty and enter a sentence of 6 years. Similarly, in Charge 2, I take a starting point of 9 years, give the one-third discount, which reduces it to 6. For Charge 3 and Charge 4, in each case, I take a starting point of 12 years and discount that to 8 years.
I take totality into account. I order that for Charges 1 and 2, the sentences be concurrent. However, I order that 3 years of the term on Charge 3 is to be consecutive to the sentence on Charges 1 and 2, and 3 years of the sentence on Charge 4 is to be consecutive to the sentences on Charges 1, 2 and 3, which makes a total of 12 years’ imprisonment.
In respect of the 2nd defendant, I take a starting point of 12 years on Charge 3 and reduce that to 8 years’ imprisonment. In respect of Charge 4, I take a starting point of 9 years and reduce that to 6 years for the plea. I order that 2 years of the sentence on Charge 4 be consecutive to the sentence on Charge 3, which makes a total of 10 years’ imprisonment.
Please refer to CACC520/2011 for the relevant appeal(s) to the Court of Appeal.