HKSAR v. Chung Yau Fuk

HCCC 45/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 45 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: The defendant pleaded guilty before a magistrate of a charge of robbery and was committed to the Court of First Instance for sentence.

Today he pleaded guilty again before me and admitted the facts. He stands convicted of the charge.

In sentencing I have considered the whole circumstances of the case, including its nature and facts, background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarised as follows. The offence took place at a one-woman brothel. On the evening of 20 July 2014 the defendant went to the flat where the victim operated her business and asked for sex service. A price was agreed and sex followed. After that, the defendant took out a paper cutter and pointed it at the victim. He told her to keep quiet or he would stab her. The victim yelled for help. The defendant took out a tool and warned her not to make any noise. Despite the victim then kept quite, the defendant hit her in the head twice with the tool. The victim noticed from her CCTV that someone was at the corridor outside. She screamed for help again. The defendant then hit her head with force. In the circumstances, the victim pointed at a container and told the defendant that there was cash inside. The defendant took the money inside, which was about $350, as well as the mobile phone of the victim. He then fled without even putting back his upper garment.

The victim suffered haematoma and minor abrasion over her occiput. There was also bruise over her left shoulder.

The defendant was arrested two days later. Under caution he admitted to have robbed the hooker because he was unemployed and short of money. He admitted to have used a paper cutter and a pair of pliers in his possession in the robbery. The paper cutter and the pliers were tools of his trade. He had the tools with him for the robbery as he had just finished work. He went there for sex service in order to release stress.

I was told that the defendant is 51 years of age. He had completed Form 4 education and was an electrician in the field of fire service maintenance. He was divorced and he has two adult daughters, he also has a one-year-old grandson. He was living alone at the time of the offence.

The defendant is not a first-time offender; he was on eight previous occasions convicted. He was convicted as early as in 1988. The offences involved theft and obtaining property by deception. Then in more than a decade he managed to keep out of trouble. In 2002 he was convicted of four charges of soliciting an advantage, two charges of obtaining property by deception and one charge of theft. For these offences he was sentenced to a total imprisonment term of 2 years. Between 2006 and 2008 he was convicted of four charges of theft and charge of possession of offensive weapon and had to serve a total sentence of 16 months’ imprisonment. His last conviction was in 2009, for an offence of burglary, he was sentenced to 2 years’ imprisonment.

Despite the defendant had committed quite a number of dishonesty-related offences, this was the first time he is convicted of the serious offence of robbery.

Learned defence counsel, Mr Lee, stressed that the defendant is remorseful and he has pleaded guilty at the earliest opportunity. He told the court that the defendant is a skilled worker and had a stable job before. However, he became unemployed and was only engaged on casual job. He slipped into financial difficulties and had incurred debts of a total amount around $20,000. Despite the financial difficulties the defendant still supports his family.

He also told the court that on the day of the offence the defendant had worked in Mong Kok and was paid $900. The cutter and the pair of pliers were tools he used for the job. After having seen his grandson, the defendant went to the place of the victim to have sex service. He asked the court to accept that the offence was not premeditated and was only committed out of a moment of greed. He stressed that despite the defendant had displayed a cutter and pointed it at the victim, he did not release the blade or used it to harm the victim.

Mr Lee also urged the court not to treat this case as a typical head-bashing case despite the defendant had hit the head of the victim with a pair of pliers. He asked the court to take into account the following matters: (1) the defendant had only used the flat side of the pliers to knock the head of the victim after she had cried for help; (2) the defendant did not hit her by surprise or behind her and he did not try to hit the victim in order to cause her to lose her consciousness; (3) the defendant did not apply strong force; (4) the assault did not cause very serious injury to the victim and there’s no evidence of brain injury; (5) the pair of pliers, though was used as a weapon, was not something comparable with a brick, stone or hammer.

The defence also produced letters written by the defendant, his church members as well as his ex-wife. In his own letter the defendant expressed his remorse and promised to turn over a new leaf. He also informed the court that he has an aged mother who is not enjoying good health. His church members confirm that the defendant is a Christian and has performed a lot of volunteer work, both for the church and the community. He has also supported two children. They pleaded leniency on behalf of the defendant. The ex‑wife also speaks well of the defendant. She said he is a responsible and hardworking person who loves his family.

Learned counsel, Mr Lee, drew to the attention of the court the following cases, all of which I have considered. The cases are Mo Kong Sang v R [1981] HKLR 610; Secretary for Justice v Ma Ping Wah CAAR 1/2000; HKSAR v Lai Kwok Fai CACC 346/2008; HKSAR v Tam Kwok Keung CACC 25/2010; and HKSAR v Chan Fuk Wah CACC 442/2005. In Secretary for Justice v Ma Ping Wah, 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 that any general changes need to be made to the Mo Kong 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 has 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 straightjacket, and there may be some offences where a lesser penalty can be imposed depending on all the circumstances. Equally depending on how severely the victim is injured, there will be other cases for which greatly increased sentences will be required.”

The sentence suggested in Secretary for Justice v Ma Ping Wah is not meant to be a straightjacket. 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 her head when she is totally unprepared or even unaware of the presence of the robber or in circumstances where such harmful attack was not even necessary to commit the offence. In the present case the defendant used a pair of pliers to attack the victim and aimed at her head, a very fragile part of her body. I also bear in mind everything that counsel said in this regard, in particular that there is no evidence that the victim has suffered very serious injury.

There may not be careful preplanning of the defendant, however, he started the robbery as soon as sex service had been provided to him. He targeted on a woman who was an 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.

Before the defendant hit the victim’s head, he had displayed the cutter, pointing it at the back of the victim, threatening that he would stab her if she did not keep quiet. This was an armed robbery committed in private premises in the first place. The defendant then used a pair of pliers to hurt the victim and he aimed at her head.

In all the circumstances, I am of the view that a starting point of 7 years and 9 months is appropriate. The defendant pleaded guilty and is therefore entitled to a one-third discount. Having considered the whole circumstances of the case, including what learned defence counsel said on the defendant’s behalf, I am of the view that this is the extent of discount the defendant is entitled to in this case. I have borne in mind the voluntary work of the defendant and his sponsor of deprived children. On the other hand I also have to bear in mind his previous criminal convictions.

Defendant, please stand up.

For these reasons I sentence you to 5 years and 2 months’ imprisonment for the charge.