HKSAR v. Che Tak Ming, Rock

HCCC 121/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 121 OF 2014

_______________

________________________

________________________

1.The defendant was presented for trial in the High Court on an indictment containing one count of robbery and one count of indecent assault. Prior to the commencement of the trial, the defendant has pleaded guilty to the count of robbery and the count of indecent assault was left on the court file.

2.The facts upon which the plea of guilty was entered on the robbery count can be briefly stated as follows.  Madam X is a casual maintenance and cleaning worker at Central Plaza in Wanchai.  On 13 November 2013, she went to use the public toilet facilities on the ground floor of Central Plaza at about 12:50 am.  She entered the female toilet which consisted of three cubicles. The cubicles are separated by a wall that do not go all the way to the ceiling and there is an open space between the upper parts of the cubicles.  She tried to enter the middle cubicle but found it was locked so she went into the first one instead.

3.After using the toilet and when she was about to leave, a man jumped down from the opening above the cubicle next to hers. The man was wearing a blue mask.  He stood between her and the door and held a paper cutter with a blade extended about 7 cm.  He pointed the cutter at Mdm X's face and told her to take out all her money.  She was frightened.  She had no money on her and told him “Let me go up to the office and get it for you, if you want money”.  The man took no notice of what she had said and pushed her face down into the toilet bowl.  He put his hand into her right trouser pocket and removed a mobile phone.  He pulled from around her neck a red jade pendant on a red string.  He then searched her trouser pockets but he found no other property of value there.  Mdm X shouted at the man and told him to go away quickly.  The man took out a piece of gauze and inserted it into her mouth.  She immediately took it out and threw it onto the floor.  The man then tried to tie her hands with a plastic strap but was unsuccessful as she waved her hands and freed herself.  He tried again and this time successfully tied her hands tightly in front of her.  He then put the blue mask on her which was the one he had previously worn.  He pushed her against a wall and removed her clothing and undergarments but as she had her hands tied most of her clothing accumulated around her wrists.  She kept yelling at the man and he scolded her for talking too much.  He then cut her right thigh with a cutter once and warned her that he would cut her again.  He said to her “Are you frightened? I’ll cut you more if you keep talking”.

4.The man then took two photos of Mdm X naked.  One of her upper body, and the other of her lower body.  He told her not to make a report to the police otherwise he would distribute the photos to her friends.  He then cut her again with the cutter.  She pretended to faint and fell to the floor.  She closed her eyes and kept silent.  She heard a sound and realised that the man had left.  She alerted a security guard who in turn reported the matter to the police.  She was able to give a description of the man who had a birthmark on the left side of his face.

5.The police carried out enquiries in the locality and noticed a man bearing the description of Mdm X’s assailant.  When he was confronted by the police, the defendant admitted that he robbed a woman and asked to be given a chance.

6.The defendant was interviewed by the police.  He stated that he worked as a labourer at a construction site near the Hong Kong Convention and Exhibition Centre in Wanchai.  He earned $12,000 per month.  He lived with his girlfriend and a three‑year‑old child in Shenzhen.  He also has a child with his ex‑wife.  He stated that he got off work at some time past 8 pm on 12 November 2013.  He was still in his work clothes and had his tools on him, a cutter and straps.  He stated that after having a meal he bought a mask as he had the flu.  As he was to work the next day, he planned to spend the night at the construction site.  He stated that he walked past the public toilet and was thinking about the financial burden on him for his family.  He entered the toilet just prior to midnight.  He stated that he thought of robbing people because he was living under great pressure.  He stated he tied several straps together and held a cutter in his hand in readiness to rob a person who came into the toilet of their property.  It stated he heard someone coming in and hid inside the middle toilet cubicle.  He saw Mdm X using the toilet and jumped through the opening from his cubicle.  He had the straps and cutter in his trouser pocket.  He claimed he saw that the woman was frightened and he covered her mouth with his hand.  He said he tried to strap the woman’s hands but the straps were short.  He said he asked the woman to give him her property and she said she only had a mobile phone and no cash.  He said he took out the cutter and there was pushing and shoving between them and the woman’s mobile phone dropped to the floor which he picked up.  He claimed that he asked the woman if she would call the police and he then took off her upper garment and took a photograph of her and said to her “Do not call the police”.  He said the woman started crying and he was afraid that she would not be able to leave with her hands tie, so he unfastened the straps with the cutter.  He said after taking the pendant from the woman’s neck he then left.  He agreed he threatened the woman with the cutter and after the phone had dropped to the floor he was afraid that she might shout for help so he took off his mask and put it over the woman’s mouth.  He said on leaving he dropped the pendant and the cutter near a flower bed at the entrance of the toilet block. 

7.He went to the construction site and sometime after 3 am on 13 November 2013 he went to Mongkok and sold the mobile phone for $1,400.  He claimed he gave the money to his family for meal expenses when he returned to Shenzhen that day. 

8.Mdm X was medically examined on 13 November 2013 and was found to have 3 cm long laceration and a 4.5 cm line abrasion over her right thigh.  She also had redness marks over both wrists.  It was submitted on behalf of the defendant that the injuries sustained by the victim were minor but that does not change the fact that he used a cutter on the victim by threatening and cutting her with it. She feigned that she had fainted and that may have prevented far more serious consequences resulting from this robbery.  I consider this a serious aggravating factor. 

9.This was a particularly nasty robbery where the defendant sought out a lone female victim in the early hours of the morning in an isolated public toilet facility.  He tied her up and threatened her with a cutter and cut her twice on her thigh with it.  He then stripped her naked and took photographs of her.  The robbery of a lone female and tying her up is a serious criminal act but this was aggravated by the humiliating and indecent treatment he perpetrated on her by stripping her naked and taking photographs of her. 

10.Given the circumstances of this robbery and the impact it would have had on the victim, there is very little that can be advanced on behalf of the defendant by way of mitigation except for his plea of guilty for which he will receive the customary one third discount to his sentence. 

11.The defendant was born in Hong Kong and is 29 years old.  He was educated up to form 6 level in Hong Kong. Since 2001 he has had various jobs in public relations, finance, sales and more recently as a construction site worker.  He has a clear record.  He divorced his former wife in August 2013 with whom he has a 6 year‑old son.  He now lives with a girlfriend in Shenzhen with whom he has a 3 year‑old son.  It is claimed he is the breadwinner of the two families and the financial burden of supporting them was the reason why he committed this robbery.  That provides no excuse whatsoever for the crime that he had committed. 

12.The defendant’s personal circumstances do not provide mitigation for a crime of this type.  In mitigation a number of letters was submitted seeking leniency for the defendant.  Letters were submitted from the defendant himself, his father, his work colleagues, a District Councillor who is known to the family and a prison chaplain.  In the defendant’s letter, he asked for forgiveness and leniency and claimed that he regretted his conduct and what he put the victim through in the early hours of that morning.  The circumstances of the offence were serious and any subsequent regret provides little if any mitigation for his conduct and for the impact that this has had on the victim.  It is submitted on his behalf that he is a young man of generally good character who has not been in trouble with the law before but who felt the financial burden of his circumstances which led him to commit this crime.  This provides no excuse or mitigation for the crime that he has committed.  It is also submitted that the family who are supportive of him have arranged to provide appropriate compensation to the victim for the mobile phone that was subsequently sold and to return the victim’s pendant to her.  I will bear this in mind but it will have little impact on the sentence to be imposed given the seriousness of the offence and the aggravating factors that need to be considered according to the relevant tariff guidelines. 

13.The sentencing guidelines for armed robbery are found in Mo Kwong‑sang v R [1981] HKLR 610.  The guidelines provide that an armed robbery involving knives or other dangerous weapons would receive a sentence of 5 years’ imprisonment for a case where the weapon or weapons are displayed, 6 years’ imprisonment if it involved an invasion of private premises and 7 years’ imprisonment if it involved any physical violence.  The guidelines could be further increased if there were any aggravating factors.  In the present case, there are the aggravating factors of (i) the victim was a lone woman; (ii) the robbery took place in isolated public facilities; (iii) the robbery occurred in the early hours of the morning; (iv) the victim was tied up, gagged and threatened with a cutter; (v) the victim was cut with the cutter and received lacerations to her thigh; (vi) the victim was stripped naked and photographed and treated indecently by him; and (vii) the victim was left in a cubicle tied up and gagged.  I find the conduct of the defendant in stripping the victim and what he did to her a serious aggravating factor.  The victim was not only robbed and subjected to physical violence but she was also made to go through a humiliating and harrowing experience in being stripped naked and photographed which was an attack on her privacy and dignity.  People should be able to go about their lives without the fear of being attacked or subjected to any form of gross indecency at the hands of another, in particular a lone woman late at night who is especially vulnerable in these circumstances.

14.I consider that in all the circumstances of this case an appropriate starting point to be 8 years’ imprisonment and with the one third reduction for the defendant’s guilty plea, the sentence imposed is 5 years and 4 months imprisonment.

Mr Philip Ross, counsel on fiat instructed by the Department of Justice, for the prosecution

Mr Albert Luk, counsel instructed by Samuel Ho & Co, assigned by Director of Legal Aid, for the defendant