HKSAR v. Law Ka Ho

DCCC 214/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 214 OF 2013

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Robbery". The properties involved are a mobile phone (approximately $3,100 in value) and a Bluetooth headset (approximately $400 in value).

Summary of Facts

Background

2.In June 2012, PW1 (Mr. CHEUNG) and Madam LAI resided together at a flat situated at Kweilin Street, Sham Shui Po ("the Flat").

3.On 26 June, PW1 bought a new mobile phone intending it to be a gift for Madam LAI.  In the same evening, Madam LAI entertained some friends, including a male nicknamed "Big Eye Boy" and the defendant, in the Flat.  It was the first time PW1 met the defendant. The new mobile phone was shown to everyone at this gathering.

4.About noon on 27 June, PW1 discovered the new mobile phone missing.  He then made a report to the Police.  The matter was investigated but no arrest was made.

The Robbery

5.About 7:45 am on 26 August, PW1 received a WhatsApp message from someone of a phone number not known to him.  The message sender claimed to be "Big Eye Boy" and asked PW1 to have breakfast together.  PW1 agreed to meet in the Flat.

6.PW1 later arrived at the Flat in the same morning but did not see "Big Eye Boy".  PW1 texted the message sender and was told to meet outside the Flat.  PW1 went outside and saw the defendant standing at the rear staircase.  The defendant told PW1 that he impersonated "Big Eye Boy" in order to set up a meeting with PW1 since PW1's reporting of the stolen phone caused him big trouble.  The defendant also told PW1that he could help retrieving the lost mobile phone and that PW1 should help him by lending him a few hundred dollars.

7.The defendant was holding a brown glass bottle when speaking to PW1.  PW1 did not believe the defendant and refused to lend him money.  The defendant became angry and broke the glass bottle.  He pointed the broken glass bottle at PW1 and demanded PW1 to at least lend him a mobile phone, if not money.  The defendant also began to shove PW1 and threw away the glass bottle.

8.PW1 retreated and intended to return to the Flat.  But the defendant caught him in the small corridor inside the Flat leading to PW1's room.  The defendant attacked PW1 by pulling his ear, punching and kicking him.  He also used the wire of PW1's Bluetooth headset to strangle PW1's neck.  The attack lasted for about 3 minutes.  PW1 shouted for help but no one was there.  At the end, PW1 gave in and handed his mobile phone to the defendant, who also took away the Bluetooth headset and fled.

9.As a result of the defendant's attack, PW1 sustained the following injuries :-

(i) Tenderness on left ear, left angle of mouth and right hand;

(ii) Abrasion on right hand;

(iii) Laceration on left angle of mouth; and

(iv) Scratch mark over left neck.

10.The defendant was arrested by the Police on 27 September.  In an identification parade held on 21 November, PW1 identified the defendant as the robber.

Mitigation & Sentence

11.The defendant is 24 and has 10 criminal records involving multiple theft offences and 1 robbery offence, which is dated August 2009.  He is single and claims to be a drug user.  He is now serving time in prison for theft and related offences.  His expected date of discharge is 26 April.

12.Defence lawyer Mr. LAI submitted that the defendant committed the robbery to earn some quick money to buy drugs for his own consumption.  He also submitted that the victim suffered minor injuries and the defendant used only minimum force.

13.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime, needless to say the need for money was to purchase dangerous drugs for self-consumption.  Furthermore, a clear message must be conveyed to the general public that robbery is a dead serious crime and the offenders would most certainly be punished by long-term imprisonment.

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.

15.In the present case, the defendant pointed a broken glass bottle at PW1 when he demanded PW1's mobile phone. However, the facts are not clear as to whether the defendant all along had the intention to rob PW1 or the matter turned into a robbery as a result of PW1's refusal to lend the defendant money. I will give him the benefit of doubt in this regard. I will not sentence him on the basis of a premeditated robbery.

16.On the other hand, I see at least one aggravating factor in the present case: the victim was injured and ill-treated by the defendant; he assaulted PW1 and even tried to strangle him. The defendant is no stranger to robbery offences either. Hence, I will adopt a starting point of 5.5 years' imprisonment. A one-third discount is given for the guilty plea, reducing the sentence to 44 months. Apart from this, I see no other mitigating factors which warrant any further discount. The sentence I pass is 44 months' imprisonment. I also order the sentence in this case to run consecutive to all his existing sentences.