HKSAR v. LAW KA LEUNG

DCCC 856/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 856 OF 2015

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REASONS FOR SENTENCE

1.  Law Ka Leung you have pleaded guilty to one charge of theft, contrary to section 9 of the Theft Ordinance[1], and one charge of using an imitation firearm with intent to resist lawful arrest or detention, contrary to section 17(1) of the Firearms and Ammunition Ordinance[2], the maximum sentence for which is life imprisonment.

2.  Full particulars of the offences are set out in the facts admitted by you on 20 November 2015 as supplemented orally in court by Mr Kwong and Mr Hau on 10 December 2015. 

3.  In summary on 20 July this year you snatched a smartphone.  Mr Co, the owner of the phone, wanted to buy a screen protection sticker for his phone.  When Mr Co placed his phone on the counter of a stall on Sai Yeung Choi Street South in Mongkok you snatched the phone and fled.

4.  Mr Co chased after you.  A sketch showing the route you took has been submitted to court.  After passing City Link Mr Co saw you holding a black gun, which you pointed to the ground and fired twice.  Believing the gun was an air pistol and not a real gun Mr Co continued to chase after you. 

5.  On reaching the junction with Dundas Street Mr Tsang, a passer-by, joined in the chase on hearing Mr Co shout “snatching”.  You ran all the way to the rear staircase of Mongkok Metro at which time you threw Mr Co’s phone on the ground. 

6.  When Mr Tsang caught up with you at the rear staircase you put up a fierce struggle during which you told Mr Tsang you had a gun and fired twice at his stomach. Mr Tsang, feeling he was not hit by the gun, pulled you out of the rear staircase.  At the same time Mr Co arrived and recovered his phone. 

7.  You suddenly pushed Mr Tsang and fled again.  Mr Tsang chased after you and pushed you on the ground.  The police arrived and arrested you.  Mr Tsang was injured in the struggle.  Mr Tsang’s injuries are shown in the photographs submitted to court.  I am told Mr Tsang however did not seek medical treatment for his injuries.

8.  Subsequent examination of the gun revealed this to be a pressurized carbon dioxide powered air gun designed to discharge 4.5mm calibre metal balls with muzzle energy less than two joules.  Photographs of the air gun have been submitted to court.

9.  CCTV capturing part of the chase along Sai Yeung Choi Street South and in the rear staircase of Mongkok Metro have been played in court.  A synopsis of the CCTV images has also been submitted to court.

Mitigation

10.  In passing sentence I take into account everything said on your behalf by Mr Chu and Mr Hau together with the mitigation letters and the content of the psychiatric; psychological and DATC reports.  The reports detail a history of drug abuse and drug induced psychosis.  You are presently receiving treatment in the DATC and considered suitable to continue with the treatment programme.  As I indicated during the hearing on 20 November the DATC report was called for to provide the court with more detail about your drug abuse and not in contemplation of making a further DATC order.  The offences to which you have pleaded guilty are far too serious for the imposition of a DATC order.

Theft

11.  There is no evidence before the court that this was anything other than an opportune theft.  For example there is no evidence that you were paying attention to shoppers, waiting for the moment when one of them was not paying attention to their property[3]. Nevertheless this remains a serious offence.  Although the phone was valued at only $799, the loss of a mobile phone causes substantial inconvenience to the owner.  I am satisfied the proper starting point after trial is 9 months imprisonment[4].

12.  You are a persistent offender having appeared in court on eighteen occasions since 1996, amassing a total of twenty three convictions, six of which are for dishonesty. Your persistence is shown by the fact that the present offences were committed whilst you were on bail in KCCC 1794/2015 for offences of violence and drugs, the case papers of which I have read.  You were sentenced to DATC which order you are now serving[5].

13.  The commission of offences on bail is an aggravating feature of sentence.  Taking this into account together with your persistent offending I increase the starting point by 3 months to 12 months imprisonment.  Giving you full credit for your plea of guilty reduces the sentence to 8 months imprisonment.

Using an imitation firearm with intent to resist lawful arrest

14.  There are no guidelines. In my view deterrent sentences are required not only to deter the individual but also to deter those persons like-minded to use firearms, real or imitation, in the course of crime or in resisting lawful arrest. 

15.  Mr Chu hasvery helpfully referred the court to three cases[6],where starting points of between 5 to 6 years imprisonment were held appropriate for offences concerning the use of imitation firearms.  In only one of the cases cited, Secretary for Justice v Lee Chun Ho, Jeef, was there a charge of using an imitation firearm with intent to resist lawful arrest or detention.  In each of the cases cited the firearm was used in the commission of either a robbery or blackmail whereas you did not take out the air gun in the course of the theft.  

16.  In the cases referred to the court by Mr Kwong[7] the firearm was possessed with intent to commit an arrestable offence, which is an offence contrary to section 18(1) of the Firearms and Ammunition Ordinance and also carries a maximum sentence of life imprisonment.  On being asked whether the prosecution accept there is no evidence you were carrying the air gun for use in crime, Mr Kwong replied that the court can draw that inference from the fact shortly after you snatched the phone you pulled out the gun.  I am not satisfied this is the only inference to draw. 

17.  I am told you use the gun for playing war games and that you were taking the gun for repair.  When you were arrested you told the police that you were taking the gun to a repair shop for fitting BB bullets and air injection.  You also told both the psychiatrist and the clinical psychologist you were taking the gun for repair.  There is some support for this in that when the gun was seized no pressurized gas or metal balls were found and that as noted earlier when you fired the gun at Mr Tsang he did not feel he was hit by the gun.

18.  The theft was an opportune theft.  Had the theft shown a degree of premeditation, for example pickpocketing, a court may be able to draw the inference the gun was carried either for use in crime or for resisting lawful arrest.  Further, I take into account that in taking the air gun for repair you may have been acting under the influence of psychosis. 

19.  Accordingly I proceed on the basis that you were carrying the gun for repair and not for use in crime.  The production of a gun in a busy shopping area nevertheless remains a very serious offence.  In Secretary for Justice v Lee Chun Ho, Jeef, the Court of Appeal said the fact that the firearm is just an imitation firearm makes little difference as victims and police officers may not appreciate that it is an imitation firearm[8].

20.  In this case Mr Co realised that the gun was an air gun and not a real gun.  Mr Tsang having felt nothing when the gun was fired at him continued to subdue you.  There is also no evidence the public were alarmed by what happened. Having viewed the CCTV, although difficult to see whether you were holding the gun in your hand throughout the chase, it would appear you were not pointing the gun at anyone.

21.  Taking into account all the circumstances of the case including that the air gun was an imitation gun; in an attempt to escape you twice fired the gun, first when being chased by Mr Co and second when you struggled with Mr Tsang at the rear staircase of Mongkok Metro; Mr Co realised the gun was an air gun and not a real gun; no pressurized gas or metal balls were found; and that the gun was not used in the course of the theft or carried by you for use in crime; I am satisfied that the proper starting point after trial is 3 years imprisonment.  Giving you full credit for your plea of guilty reduces the sentence to 2 years imprisonment.

Mental disorder

22.  The psychiatric and psychological reports show that you have suffered from mental illness for over twenty years with five admissions to psychiatric hospitals in 2001, 2006, 2011, 2012 and 2014.  Both the psychiatrist and the clinical psychologist are of the opinion that you suffer from drug induced psychosis.  The clinical psychologist is of the opinion that your offences appear to be related to your long standing drug abuse and substance-induced psychosis and that your risk of reoffending is assessed to be moderate[9].

23.  In HKSAR v Chiu Peng, Richard[10]the Court of Appeal accepted that a court may properly allow a discount in sentence where a defendant is suffering from mental illness which played a part in the commission of the offence.  The court said the justification for a discount in sentence by reason of mental illness was:

“…as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind. He knew that it was wrong to commit the crime, but he did not appreciate that the commission was as serious as it was: the degree of culpability was thus lessened.”

24.  Chiu Peng, Richard was cited in HKSAR v Chen Xuehui[11]where the court reduced the sentence imposed after trial where the defendant suffered from Bipolar Affective Disorder and displayed florid symptoms at the time of the offence.  McMahon DHCJ in Chen Xuehui said that in determining whether the illness has affected one’s culpability for the offence requires an assessment of the nature and severity of the illness and an appreciation of the relevance of its symptoms to the commission of the offence. 

25.  You told both the psychiatrist and the clinical psychologist that you had consumed ice and hypnotics the night before the offences.  You told the psychiatrist that you heard a male voice telling you to put your toy gun in your bag when going to Mongkok to purchase hypnotics.  Similarly you told the clinical psychologist that you had placed the gun in your bag days before on the instructions of a voice telling you to take the gun for repair.  You also told the clinical psychologist when you walked by a retail shop you heard a hallucinated voice telling you to steal[12].   

26.  Although you may have been acting under the influence of psychiatric illness at the time of the offences this was self induced by your continuous abuse of drugs.  Whilst sympathetic to anyone suffering from mental illness I am satisfied in the circumstances there should be no further discount on account of the fact you may have been acting under the influence of drug-induced psychosis at the time.   

Totality

27.  Mr Chu asks that a concurrent or largely concurrent sentence be imposed.  As pointed out earlier unlike the cases cited by Mr Chu where the imitation firearm was used in the course of the crime and therefore taken into account when sentencing for that offence, you did not use the air gun in committing the theft. 

28.  The two offences are therefore separate and distinct.  I am satisfied wholly consecutive sentences are appropriate making a total sentence of 2 years and 8 months imprisonment, which I am satisfied properly reflects your culpability on both charges.

Sentence

29.  You are convicted and sentenced as follows

Charge 1 – 8 months imprisonment; and

Charge 2 – 2 years imprisonment consecutive to charge 1.