COURT: Defendant, you pleaded guilty before a magistrate of a charge of assault with intent to rob and were committed to the Court of First Instance for sentence. Today you pleaded guilty again before me and stand convicted of the charge.
In sentencing, I have considered the whole circumstances of the case, including its nature and facts, your background and mitigation put forward on your behalf.
The facts of the case may be summarised as follows. The offence took place at a one-woman brothel on the evening of 22 October 2012. You went to the place and rang the doorbell. The victim, with only a towel wrapped around her body, answered the door. Once the door had been opened, you dashed into the room and told the victim to take out money. You also pushed the victim down onto the bed with a brick being held in your hand. When the victim then had a scuffle with you and started to shout for help, you hit her at her head with the brick.
The victim continued to struggle with you and managed to snatch the brick from your hand. She threw the brick onto the floor and tried to leave the room. You, however, grabbed her again and another struggle started. Eventually, the victim succeeded in opening the door and shouted for help. It attracted assistance and, as a result, you were restrained by other people in the flat.
When police later arrived, you were arrested. Under caution, you admitted forming the idea of robbing others as you had been unemployed for over a year and were hungry. You found two bricks on the floor and carried them with you in a bag. You went to the place where you committed this offence as you thought it would be easier to rob a lone female sex worker. Although you intended to rob, when you saw the victim, you decided to have sex with her first. You agreed the fee with her and had sex with her. You then declared robbery to the victim when she came out of the shower.
The victim suffered tenderness to her head.
I was told that you are now 31 years of age. You were educated up to secondary 5 level and after you had left school, you worked as a clerk and a cook. At the time of the offence, you were unemployed.
Despite you had hit the head of the victim with a brick, your counsel urged me not to treat this case as a head-bashing case. He stressed that as you had been unemployed since August 2011, you were in great financial difficulties. It was under such circumstances that you had committed the present offence. There was no pre-planning and indeed the idea of robbery was formed just before you committed the offence. He described your acts as opportunist.
He produced a letter written by you in which you express remorse and indicate your desire to turn over a new leaf. You said you are going to engage in courses when you are in custody to equip yourself for the future.
You are not a first-time offender. In 2001, for 10 charges of the offence of access to a computer with dishonest intent, you were ordered to perform 160 hours of work under a Community Service Order.
In the case of Secretary for Justice v Ma Ping Wah, CAAR 1/2000, his Lordship Stuart-Moore VP said:
“It seems to us a matter of the most straightforward commonsense that where a robber deliberately sets about his victim by striking a blow or, as in this case, blows to the victim’s head with a weapon which is capable of causing brain injury, this will be an aggravating factor. It is a particularly dangerous act.
However, in view of the evidence with which we have been provided, whilst we do not consider any general changes need to be made to the Mo Kwong Sang guidelines, we are satisfied that head-bashing robberies are in a category of sufficient gravity to justify a particular band of guideline sentence which was not contemplated at the time when judgment was given in that case.
In our judgment, the usual sentence to be imposed for such robberies following a contested trial where it is established that a deliberate blow to the head with a weapon capable of causing injury to the brain had been struck by the robber, or the culprit who is intent on robbery, should not be less than 8 years’ imprisonment. This is not of course a straitjacket and there may be some offences where a lesser penalty can be imposed, depending on all of the circumstances. Equally, dependent on how severely the victim is injured, there will be other cases for which greatly increased sentences will be required.”
I have also had regard to other cases such as Mo Kwong Sang v The Queen [1981] HKLR 610. The sentence suggested in Secretary for Justice v Ma Ping Wah is not meant to be a straitjacket. I do not think it is necessary to declare whether the present case should be classified as a head-bashing case. I accept that it may be more vicious if the victim was hit on his head when he is totally unprepared or even unaware of the presence of the robber, or in circumstances where such harmful attack is not even necessary to commit the offence.
In the present case, you were armed with a brick which you surely were prepared to use to harm the victim when you want to. In fact, you had used it and aimed at the head of the victim, a very fragile part of her body, and it was sheer luck that she did not suffer serious injuries.
There may not be careful preplanning by you, however, the robbery cannot be said to be not premeditated and definitely not opportunist. You armed yourself with a brick and targeted on women whom you considered were easy prey. There have been decisions in the Court of Appeal that if the robbery was committed on a sex worker working alone, this fact should be taken into account in sentencing.
In all the circumstances, I am of the view that a starting point of 7 years and 9 months is appropriate.
You pleaded guilty and are therefore entitled to a one-third discount. Having considered the whole circumstances of the case, including what your counsel said on your behalf, I am of the view that this is the extent of discount you are entitled to in this case.
Defendant, will you stand up. For these reasons, I sentence you to 5 years and 2 months’ imprisonment.