HKSAR v. CHEUNG WAN KEUNG

HCCC 284/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 284 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Defendant, you have pleaded guilty to a charge of assault with intent to rob, contrary to section 10(2) of the Theft Ordinance, Cap 210.

You have admitted that on 27 November 2014 at a flat on the 2nd Floor, 166 Shau Kei Wan Road, Chai Wan, you assaulted a Madam Yang with intent to rob her.

You pleaded guilty before the magistrate on 10 July 2015 and you were committed to the High Court for sentence.

I have today confirmed with you your plea of guilty and admission of the facts which you had made before the magistrate.

The victim, Madam Yang, worked as a masseuse at a massage establishment at the location of the offence. On that day at about 7.30 pm you were her client. She finished her massage on you at about 10.45 pm. Having left the room, you then requested for Madam Yang to return to the room. She thought that you were calling her as you intended to settle the bill. However, suddenly and without warning you took out and produced a 12-inch-long knife and placed your hand on your shoulder. You said something to her which she did not understand. She was scared and shouted.

You then stabbed her left arm and left breast with the knife. Fearing that you would hurt her further, she used her left hand to grab the knife and bit your right hand. A struggle began between the two of you and you tried to press Madam Yang onto the ground. During the struggle, you let go of the knife and Madam Yang immediately took it and threw it towards the corner of the room.

A cleaner at the locationwho was outside the room at the time witnessed the struggle. Despite telling you to leave, you ignored her. Madam Yang managed to leave the room with the cleaner.

Outside the premises she met a neighbour who was alerted by the shouts of Madam Yang and the cleaner. The neighbour, Mr Tse, then went upstairs to his flat and fetched his bicycle chain with a lock. He then locked the gate of the premises to prevent you from escaping.

A report was made to the police and the police arrived. The bicycle chain of the premises was unlocked and you were found inside the premises. Madam Yang identified you as the person who was holding a knife and intending to rob her.

You were arrested for the offence of robbery and admitted that you were in need of money and had intended to rob Madam Yang and the cleaner with the knife, but you never expected you would cause something so serious.

The knife was located. It had a 4-inch blade.

Madam Yang was escorted to the hospital and the medical findings were that she suffered a left-hand, left-arm and left-breast laceration: the left-arm laceration was 6 centimetres in length, the left-hand laceration was 2 centimetres in length and the left-breast was 2 centimetres in length. Her left little finger flexion was decreased.

On the following day, 28 November, Madam Yang had an operation on her left hand and left arm. There was exploration of the wound and irrigation and suturing performed.

She was discharged from hospital on 1 December 2014. She was reassessed at the outpatient clinic on 17 December 2014. The left-hand and left-arm wound had healed. There was numbness over the left little finger and it had a bit of stiffness. She had anxiety symptoms after injury and she had been referred to the psychiatry and occupational therapy. She was granted sick leave from 28 November 2014 to 20 May 2015.

You had sustained the following injuries: bilateral hands human bite mark associated with tenderness and erythema.

Your counsel, Mr Alan Ng, has made very able persuasive mitigation on your behalf before me this morning.

You are 60 years of age and are of clear record. You had originally worked as a factory work since you left school at age 18. However, for the past 20-odd years you had been working as a watchman or a building attendant earning about $9,800 a month.

You had become unemployed since June 2014. You were dismissed because of your health problems, and since you were unemployed you had lived on your own savings.

By the time of this offence you had used up all your savings. As you could not find another job you were financially strained. In view of your financial difficulties, you had thought up this idea of robbing somebody for money.

On that day you had purchased the knife and saw the massage establishment, with this robbery in mind you went up to the establishment. What happened next were the facts, as I mentioned above.

Mr Ng had lodged with the court a number of previous decided cases that recognises that the guidelineauthority for armed robbery is that of Mo Kwong Sang v The Queen [1981] HKLR 610. He refers to the case of HKSAR v Mok Chi On HKCC 167/2013 and says that the facts are similar to the present case and asks me to impose a similar starting point of 7 years’ imprisonment.

I brought to Mr Ng’s attention the case of HKSAR v Wong Kam & Anor CACC 520/2011 where the Court of Appeal also considered the tariff in Mo Kwong Sang and various aggravating factors which may enhance the starting point of 5 years.

In the present case, defendant, this was an armed robbery in that you carried a knife which a starting point of 5 years’ imprisonment is appropriate. This is a robbery which involves an invasion of private premises which includes business premises as this massage establishment was.

In those circumstances, that would enhance the 5 year starting point to one of 6 years’ imprisonment. If any physical violence was used on any of the victims, that would enhance the starting point by a further year to one of 7 years.

In this case there was some physical violence in that there was a struggle amongst you, and also, clearly, you had used your knife to stab or slash the victim at various parts of her body.

I consider that the victim’s injuries caused by the slashing or stabbing of the knife are further aggravating factors.

Further, I received a victim impact report, or statement from the victim, stating that she has suffered much psychological and psychiatric injury or damage as a result.

Mr Ng does not challenge the psychiatric or psychological injuries that the victim has complained of. I quote from her statement as regards her mental part, she is deeply traumatised ever since the occurrence of this robbery case. She constantly suffers from insomnia and has nightmares dreaming of situations of being assaulted:

“Every time when I saw people with similar features with that man, I would be very frightened and I sometimes even dodge them. I dare not go to strange places worrying that I may be hurt by someone.”

She has to take psychiatric drugs, tranquilizers and sleeping pills and attends follow-up consultations at the Department of Psychiatry and Psychology at various hospitals. She now does not work and relies on Comprehensive Social Security Assistance.

Taking these matters into account, I consider that those further aggravating factors warrant a higher starting point than that of 7 years’ imprisonment.

Defendant, I accept that this is most out of character in that you committed this offence at a ripe age of 60 never having breached the law before. Your plea of guilty at the earliest opportunity shows that you are deeply remorseful.

Taking those factors and your background mitigation, I consider an appropriate starting point of 7 years and 3 months’ imprisonment had you been convicted after trial. Giving you the customary one-third discount for your plea of guilty, that term shall be reduced to one of 4 years and 10 months’ imprisonment to which you shall so serve.