HKSAR v. Law Lee Hung

DCCC 781/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 781 OF 2014

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty to two charges.  The first charge is robbery contrary to section 10 of the Theft Ordinance Cap 210.  The second charge is attempted robbery contrary to section 10 of Cap 210 and section 159G of the Crimes Ordinance Cap 200. 

2.The robbery and the attempted robbery occurred on two separate days and involved two separate victims both ladies aged in their mid twenties.

3.The facts reveal in respect of the first charge on 2 July 2014 PW1 was walking along Shun Ning Road Cheung Sha Wan Kowloon at around 2125 hours when the defendant approached and grabbed her by the shoulder and neck and pushed her towards some railings.

4.PW1 was told not to make any noise and to hand over all her money.  PW1 took HK1,300 from her wallet and gave it to the defendant.  The defendant told PW1 to kneel down and then made good his escape along Cheung Fat Road.

5.Although PW1 suffered pain she did not require medical treatment.

6.In respect of the second charge on 9 July 2014 at around 2305 hours PW2 was walking along Po On Road Cheung Sha Wan when the defendant suddenly grabbed  her by the neck from behind with both hands and told PW2 to hand over her mobile telephone.  PW2 said she did not have a mobile telephone with her.  The defendant repeated his demand all the time continuing to grab PW2 by the neck. PW2 managed to shout out robbery whereupon the defendant released his grip and pushed PW2 causing her to fall to the ground.

7.Before the defendant fled PW2 took a look at his face and saw he was wearing a surgical mask.

8.Although PW2 felt unwell as a result of the attempted robbery she did not require medical treatment.

9.An off duty police constable (PW3) heard PW2 shout robbery and saw her point at the defendant who was fleeing in the direction of Cheung Fat Road.  PW3 gave chase and managed to catch and subdue the defendant at the junction of Shun Ning Road.

10.The defendant was arrested and cautioned and under caution said he had spent all his money and robbed someone of a mobile phone.  A surgical mask was found on him.

11.During a subsequent interview under caution which was video recorded the defendant made admissions to the first and second charge.

12.In respect of the first charge the defendant said he committed the robbery because he was in need of money.  He had not worn a mask on that occasion and spent the $1,300 on daily necessities.

13.In respect of the second charge he said he left home with the surgical mask and upon seeing PW2 grabbed her neck from behind and demanded the mobile telephone.  He intended to sell the mobile telephone for money.  When PW2 cried out he made good his escape but was caught and subdued at the junction of Shung Ning Road.  The defendant admitted the surgical mask found on him was the one he had worn when he tried to rob PW2.

14.At an identification parade held on 23 July PW2 identified the defendant as the one who had attempted to rob her on 9 July.

15.I have been informed that PW1 also attended the identity parade but was unable to identify the defendant.  The first charge thus depended entirely upon the defendant’s admission to the police. 

16.The defendant has two previous convictions. 

17.The first conviction was for theft (shoplifting) and the second for Managing a Vice Establishment.  According to the antecedent statement the defendant had been released from prison on 9 February 2014.  I note he spent his period in custody at the Siu Lam Correctional Institution.

18.The antecedent statement also refers to the defendant being an out-patient at the West Kowloon Psychiatric Centre.

19.Mr Ng who appeared for the defendant explained in mitigation the defendant was under psychiatric care as a result of depression suffered after he lost his job.

20.The defendant has written a letter in mitigation in Chinese but the contents were explained by Mr Ng.

21.In the letter the defendant refers to an incident when he was 7 years old involving a beating by his father which caused him injury to his left eye.  This injury was to have far reaching consequences since the deterioration to his eyesight as a result of the injury prevented him joining the Fire Services Department after he had left school and subsequently caused him to lose his job as lifeguard.  The loss of job caused the depression and hence the need to seek psychiatric help.

22.The defendant claims he has been emotionally upset during his period on remand and is very remorseful for what he has done.

23.Mr Ng said the defendant was married with two step children.  His wife and step children live on the Mainland.

24.Mr Ng rightly says the most important mitigating factor is the defendant’s pleas.  He points out that in respect of the first charge this was dependent upon the defendant’s frank admission.  In respect of both incidents the defendant acted alone and although employed violence did not use or display any weapon.  Neither victim was seriously hurt.

25.Although these are two separate incidents I am asked to consider totality when assessing the overall sentence the defendant should serve.

26.Although neither victim required medical treatment the circumstances of these two incidents no doubt caused the two victims to be very frightened.

27.They were two young ladies walking alone along the street in the evening and preyed upon by the defendant.  A shortage of money is certainly no mitigation for committing robbery.

28.In HKSAR and Ting Chiu & another CACC 174/2003 the appellants acting in concert had robbed a man and his wife who were out walking around midday near Lion Rock.  Although it was initially alleged a knife was involved after a Newton hearing the court said it could not be satisfied a knife was produced during the robbery.  The victims were robbed of money and a watch.

29.A starting point of 5 years adopted by with reference to Mo Kwong Sang v The Queen [1981] HKLR 610was reduced to four years on appeal the Court of Appeal pointing out the guideline in Mo Kwong Sang applied where a weapon had been used or displayed during the course of a robbery.  The act of robbing in concert with another was regarded as an aggravating feature.

30.In HKSAR and Lam Ka Hung CACC 294/2003 the appellant had been sentence to three years and four months after a plea of guilty to a robbery of a 57 year old female who was returning home in the evening.  The victim had sustained a minor injury.

31.The appellant had 11 previous convictions but none related to robbery or violence.

32.Upon appeal the sentence was reduced to two years and eight months.

33.In HKSAR and Ku Kwok Wai & another CACC 14/2012 sentences of two years and two months were upheld on appeal in respect of a robbery from a 17 year old female student at around 0500 hours as she was waiting in a lift lobby.  The robbery was said to be one step up from snatching.  Both the appellants were young persons of previous clear record.

34.In the present case it is clear the defendant had gone out with the intention to commit robbery and had targeted lone females walking along the street in the evening.  It is only because PW2 was able to shout for help and alerted the police officer was the defendant arrested.

35.There can be no excuse for what the defendant did.

36.The defendant has previous convictions and therefore cannot pray in aid good character.  Although one of his convictions involves an act of dishonesty he has no previous history of violence.

37.I bear in mind the defendant did act alone and had not used or displayed any weapon.  However he resorted to violence of a particularly unpleasant nature by grabbing both victims by the neck.

38.In respect of the first charge he had also pushed PW1 towards the railings and made her kneel down whilst he made good his escape.

39.In respect of the second charge he had come upon PW2 from behind and continued to grab hold of her neck whilst repeating his demand for the mobile telephone before pushing her to the ground.

40.Persons’ particularly young ladies can expect to be able to walk along the street  in the evening and not face predators such as the defendant who feel their need for money is some kind of justification for committing robbery.

41.In all the circumstances I shall adopt a starting point of three years and six months in relation to each charge.  The defendant will be given the full one-third discount for his pleas reducing the term to two years and four months.

42.Accordingly in respect of the first charge the defendant is sentenced to two years and four months imprisonment.

43.In respect of the second charge the defendant is sentenced to two years and four months imprisonment.

44.These were two distinct acts on different days and involving two different victims.  As such the sentences should run properly consecutive to each other.

45.However I have been asked to consider the totality principle and applying such principle I consider an overall term of three years and six months appropriate.

46.Accordingly in respect of the term of two years and four months imposed in for the second charge fourteen months will be consecutive to the term imposed for the first charge and fourteen months concurrent making a total of three years and six months which the defendant has to serve overall.