HKSAR v. LEUNG Kin ming

DCCC475/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.475 OF 2010

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Reasons for Sentence

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1.  The defendant faces one count of Assault with intent to rob, contrary to s.10(2) of the Theft Ordinance, Cap.210. It is alleged that he on 7^th April 2010, at Yiu On Shopping Centre, Yiu On Estate, Ma On Shan, New Territories, together with a person unknown, assaulted Law Ling-fai with intent to rob him.

2.  The defendant pleaded guilty to the charge, admitted to the summary of facts and was duly convicted.

Facts

3.  At about 2:20am on 7^th April 2010, the victim met up with his girlfriend PW2 to go to the victim’s home. When they were got to outside shop no.G113 Yiu On Shopping Centre, an unknown male suddenly attacked the victim from behind on his body and head for about 20 times. PW2 immediately called the Police. The unknown male then left.

4.  Immediately after the unknown male had left, the defendant and a male (“WP”) appeared and went up to the victim and PW2. The defendant said the unknown male was his friend and asked if the victim had triad background. The victim said no. The defendant then claimed that he was a “local bully” and demanded the victim to follow him to go somewhere else. The victim refused but then the defendant and the WP pulled him up to a nearby staircase inside Yiu On Shopping Centre. PW2 followed them but did not go up the staircase.

5.  At the staircase, the defendant told the victim to squat and asked him again if he had any triad background. When the victim answered “no”, the defendant assaulted him and demanded him to surrender his belongings. The victim refused and the defendant assaulted him for 5-6 times. The defendant also tried to snatch the mobile phone from the victim’s right hand but was not successful. PW2 overheard the conversation between the defendant and the victim.

6.  The Police arrived at this juncture. Upon hearing the Police sirens, WP fled. The defendant tried to escape too but was stopped by the victim from doing so.

Previous convictions

7.  The defendant has 4 previous convictions with 2 for theft in 2004 and 2008 respectively.

Mitigation

8.  The defendant is 26. Before his detention, he was living in room 221 Hang On Estate, Ma On Shan, a public housing acquired by the family. The defendant was educated up to Form 2 level. In relation to his previous convictions, apart from the first offence when he was fined, the rest of the sentences were all for DATC. His problem is therefore drugs.

9.  The defendant is single, his father passed away in 2009. His mother is now 60, a housewife. There are 2 elder brothers, both owners of leather goods shop, both married and living apart. The defendant is living with his mother. When he used to worked, he contributed about $5,000 per month to his family.

10.  After the defendant left school in 1999, he worked for 6 months in the kitchen of a restaurant in Causeway Bay. In 2000 he worked as transportation worker working in Siu Lik Yuen in Shatin. Since 2006, the defendant worked as a salesman/merchandiser and godown attendant earning $15,000 per month at the shop owned by his elder brother.

11.  The defendant needs to take care of his mother as she has been suffering from a heart condition since 1996. She had an operation to her heart and now needs regular medical care and she has to attend hospital from time to time.

12.  In 2000, his mother was also diagnosed as suffering from nose cancer. During 2002 and 2003 she attended Prince of Wales hospital for electrotherapy. She is weak and always feels dizzy and needs constant care and attention and someone to bring her to and from the hospital for treatment.

13.  The defendant has a history of drug abuse. In 2002, he was attracted by bad peers to start taking drugs. All along he had been taking Ketamine. In 2003 and 2004, on 2 occasions he was in possession of dangerous drugs and was sentenced to DATC twice.

14.  In 2006 and 2007 although he did not commit a criminal offence, he voluntarily joined SARDA in Shek Ku Chau for treatment of his drug addiction. A 12 weeks course was completed. After he was released he still felt from time to time the urge to take drugs. In 2007 he volunteered for an 8 months residential treatment with SARDA. But after he left Shek Ku Chau, he was not able to disassociate himself from the bad elements and committed the 2008 offence.

15.  For the present offence, the defendant was with a friend and they had just taken Ketamine, the defendant felt the influence of the Ketamine and he admitted the offence, he realized his wrong too late.

16.  The defendant did not plead guilty at the earliest opportunity. Self-induced intoxication is no defence to the charge and counsel for the defendant had advised him to plead guilty. He had pleaded guilty and should be allowed some discount in sentence.

Sentencing authorities

17.  In the case of HKSAR v Thapa Ramkishna and others, CACC 375/2003, at page 9, the Court of Appeal referred to the case of HKSAR v Ting Chiu [2003] HKLRD 378, a case in which 4 men confronted a middle-aged couple walking in the countryside, declared robbery and stole cash and valuables from them. An eventual sentence of 3 years’ imprisonment was imposed.

18.  It is submitted by Mr. Yeung for the defendant that the degree of fear is less in our present case and should warrant a lesser sentence.

Sentence

19.  Although I agree with the said principle, I find that there is not much difference in the degree of fear faced by the victim in this case or that of Thapa Ramkishna or Ting Chiu.

20.  Our victim was going home with his girlfriend late at night. He was suddenly attacked for no reason by the unknown male whom the defendant claimed to be his friend. The defendant then immediately came out with another person asking him about triad background. Then the victim was told to follow the defendant to another place. When the victim refused his girlfriend was also threatened. The victim had no choice but to follow. When at the staircase, the victim was ordered to squat and then to take out his belongings. When he refused he was assaulted. I think any reasonable person would be under a considerable amount of fear given the circumstances.

21.  I have considered carefully the mitigation put forward by Mr. Yeung on behalf of the defendant but I find that they are not significant factors and should not attract much weight in terms of mitigation.

22.  Having considered the case submitted by the prosecution and the circumstances of our case, I find that a starting point of 3 years’ imprisonment is appropriate. I will grant the defendant the full 1/3 discount in recognition for his guilty plea and sentence him to 2 years’ imprisonment.