HKSAR v. Lee Wai Yip Ray

HCCC 307/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 307 OF 2014

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1.The defendant has pleaded guilty to five counts of robbery. The robberies occurred on separate days in December 2013 at various locations in Hong Kong and involved the defendant on each occasion stalking a lone woman and forcefully grabbing her bag. There were occasions when he was physically violent to the victim.

2.The first robbery occurred when a 50‑year‑old woman came out of a lift.  He grabbed her bag and fled.  Contained in the bag were number of personal items, a credit card and $1,300 cash.

3.The second robbery occurred when a 50‑year‑old woman came out of a lift to go to her flat.  The defendant followed her and pushed to the ground.  He grabbed her bag and fled.  Contained in the bag were four credit cards, an ATM card, bank passbooks, a mobile phone and $11,000 cash.

4.The third robbery occurred when a 57‑year‑old woman came out of a lift and was followed by the defendant.  He grabbed her neck from behind and pushed her towards the rear staircase.  He told her that he wanted money and that she should take out all her cash otherwise he would hit her.  He clenched his fist against her face.  She was scared and gave him her diamond ring and bag.  Contained in the bag were a mobile phone, four ATM cards, personal items, $10,000 cash and 1,500 RMB cash.

5.The fourth robbery occurred when a 46‑year‑old woman was waiting for a lift in the lobby and the defendant grabbed her neck from behind and dragged her to the rear staircase.  He pushed her to the ground and grabbed her bag and fled. Contained in the bag were an identity card, $2,500 cash and 350 RMB cash. The woman sustained tenderness to her left shoulder and an abrasion over the left side of her mouth.

6.The fifth robbery occurred when a 49‑year‑old woman came out of a lift and was followed by the defendant.  He grabbed her bag and she fell to the ground.  He fled and inside the bag were a mobile phone, an identity card, eight credit cards, an ATM card, an Octopus card and $410 cash.

7.On 28 December 2013, police officers mounted an anti‑robbery operation and intercepted the defendant who was behaving suspiciously.  He was arrested in relation to the fifth robbery and later under caution admitted having committed all five robberies.  He said he discarded all the items except for the cash which he had spent.

8.The defendant is 43 years of age.  He has an appalling criminal record.  He has 45 previous convictions of which 29 are for offences similar to the ones he has now pleaded guilty to.  Since 1989, he has been convicted for offences of assault, burglary, blackmail, fighting, attempted theft from a vehicle, handling stolen goods, possession of drugs and robbery on three occasions in 1998, 2005 and 2008.  He was last discharged from prison on 14 November 2013 for the sentence he served in relation to 2008 robbery. He was unemployed at the time of arrest and had previously worked as a waiter and construction worker.  There is no mitigation that can be meaningfully advanced on his behalf except for his pleas of guilty.

9.A repeat offender must expect, and will usually receive, an enhanced sentence for his continued attitude of disobedience of the law.  An enhanced sentence is not given as an additional punishment for previous offences for which the offender has already been punished, but for the aggravating factor of his repeated offending where previous sentences have not deterred him and hence he poses as a danger to the community.  As a repeat offender, the defendant stands before this court familiar with the criminal processes for offences of this type and therefore more culpable and more likely to recidivate.  This warrants the imposition of condign punishment.

10.It is argued by Mr Chase Pun, counsel for the defendant, that the guidelines suggested in R v Mo Kwong-sang[1987] HKLR 782 are for cases involving armed robbery and do not have application to this case.  That is not altogether correct.  The case identifies various factors or features that may be exhibited in a robbery, whether armed or not, which may heighten the level of seriousness of the offending and warrant an increased sentence.  Such factors or features include, where the robbery involves physical violence or threats to the victim, where the robbery takes place in an isolated location or in domestic or business premises including common parts such as a lift or staircase, where there has been a multiplicity of offences of a similar kind and where the victim is vulnerable and alone.  Mr Pun has also referred to me HKSAR v Ting Chiu & Anor [2003] 3 HKLRD 378 and R v Yau Kwok Tung  [1987] HKLR 782, where the Court of Appeal had suggested that a starting point of 4 years’ imprisonment would be appropriate for an unarmed robbery, but this would be subject to upward adjustment for aggravating factors.

11.In this instance, the defendant stalked middle‑aged women and when they were alone and vulnerable in a lift lobby or staircase he attacked them by forcefully grabbing their bag, and sometimes engaging in physical violence against them.  With these factors in mind, I would impose a starting point of 4 years and 6 months’ imprisonment on each count which I would enhance by 1 year for his persistent offending which increased his culpability for the crimes he has committed and in relation to which he stands before me today, and by a further 6 months on count 4 for his use of violence on the victim.  On each of counts 1, 2, 3 and 5, I impose a starting point of 5 years and 6 months’ imprisonment which I reduce by one third for the defendant’s guilty plea to 3 years and 8 months’ imprisonment.  On count 4, I impose a starting point of 6 years’ imprisonment which I reduce by one third for the defendant’s guilty plea to 4 years’ imprisonment.  Taking into account the totality principle, I make the sentences on counts 1, 2, 3 and 5 concurrent with each other of which 9 months is to be consecutive to the sentence on count 4, thus making a total sentence of 4 years and 9 months’ imprisonment.

Ms Sabra SY Lo PP of Department of Justice, for HKSAR

Mr Pun Chi Ming Chase, instructed by KY Lo & Co, assigned by Director of Legal Aid, for the appellant