HKSAR v. HON CHUNG WING

HCCC123/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 123 OF 2010

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

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COURT: The defendant, Hon Chung-wing, faced the following three charges. The 1st charge, attempted robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210, and section 159G of the Crimes Ordinance, Cap. 200. The 2nd and the 3rd charges were both wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212.

The defendant pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The Summary of Facts

According to the Admitted Facts, the defendant posed as a customer and gained entry into a flat in which the two victims, PW1 and PW2, worked as masseuses. PW1 greeted the defendant and led him into a room. The defendant undressed and went for a shower. After the shower, the defendant took out a cutter, pointed it at PW1 and declared robbery.

PW2 heard the noise and entered the room. Both PWs then struggled with the defendant and the defendant used the cutter to slash their limbs. The defendant grabbed his clothes and fled. PW2 called the police. After the police arrived, they found a pair of socks and a pair of trainers left behind by the culprit. They also found a cutter from a rubbish bin at the staircase landing.

Both PWs were rushed to hospital. PW1 sustained an 8 cm V-shaped cut over her right elbow and a longitudinal 3 cm cut over her triceps. PW2 sustained a 5 cm deep cut wound over her left forearm and an 8 cm deep cut wound between her left thumb and index finger, resulting in limited extension of her left wrist, limited range of movement of her left thumb and reduced sensation with her left hand and fingers.

Both PWs were hospitalised for three days. PW1 was granted sick leave for 20 days, while PW2 had sick leave from August 23 to 1 February this year. PW1’s wound healed well and she had full power and extension of her elbow. In PW2’s case, she was assessed to have suffered a 5 per cent disability and was also expected to improve over time.

In the meantime, on 13 October last year, the defendant was arrested by the police. Under caution, the defendant said, “I did it, I robbed because I did not have money”. In a video-recorded interview, the defendant admitted that on the date in question, that is two days after he was released from a Training Centre, he was not able to find his friend and he decided to rob for money. He looked up addresses of “one-woman apartments” at an internet bar and bought a cutter before proceeding to the victims’ premises.

He admitted placing the cutter close to PW1’s neck to declare robbery. PW1 said she would go out to get money but returned with PW2. They tried to snatch the cutter from the defendant and suffered injuries. The defendant soon left the scene and disposed of the cutter in a rubbish basket. He identified the cutter and the trainers seized by the police as belonging to him.

Both victims failed to identify the defendant at identification parades held in October 2009.

Human DNA found on the inside surface of one of the socks could have come from the defendant.

Concerning the victims’ injuries, I had a look at the photographs taken of the victims while they were still in hospital and after they were discharged, I can see the extent of the wounds and the resulting scars which would appear to be permanent.

Background

The defendant is a 19-year-old male with previous convictions. He first transgressed the law by committing the offence of theft in 2005 when he was only 14 years of age. He was put on Probation Order and Community Service Order. In 2006, he was found to be in breach of the Probation Order and was then sentenced to a Rehabilitation Centre. He then failed to return to the Rehabilitation Centre and was then sentenced to a Training Centre.

In 2008, for three offences of common assault, he was again sent to a Training Centre. According to him, he committed the present offence two days after he was released from the Training Centre. The record shows that he had been in the Training Centre for 35 months.

The defendant is the only son of his parents. His father has passed away. His mother remarried and he did not get along with the new family and became estranged from them. Mr Kelly, in mitigation, informed me that the defendant’s mother refused to let him stay with her after the defendant was released from the Training Centre. He was then staying at a hostel organised by volunteers.

He started taking drugs again - ketamine and cannabis - which he had obtained on loan, and he planned the robbery. He looked for a “one-woman apartment” and did not expect a second woman to be present. He only intended to use the knife to scare the lone, single woman. When the second woman appeared, he panicked and then injured them during the struggle.

Mr Kelly informed me that the defendant had asked him to let me know that he would like to be sent back to the Training Centre for these offences. Mr Kelly, quite correctly, admitted that this is not a case in which he could make such a plea to me. He rightly pointed out that, in the present case, the only mitigating factor is the defendant’s plea.

Sentence

Even though the defendant is aged 19, that means under 21, section 109A of the Criminal Procedure Ordinance, Cap. 221, does not apply as both the offences of robbery and wounding with intent are excepted offences.

In the case of Mo Kwong Sang V R [1981] HKLR 610, the Court of Appeal held that the appropriate sentence for an armed robbery where the defendant carried a knife or other dangerous weapon, excluding firearm, which he displayed to the victim should be 5 years’ imprisonment. If such a robbery also involves an invasion of private premises, a sentence of 6 years would be appropriate. If physical violence, including tying the victims up, is used, a sentence of 7 years should be considered.

In the present case, the defendant armed himself with a cutter and posed as a customer to gain entry into the domestic premises in which the two victims worked as masseuses. Not only did the defendant display the cutter to PW1 when he declared robbery, he cut and injured both victims when they put up a struggle. I have already listed out their injuries and I would not repeat here.

The circumstances of the offence do not show that it was very well planned. The defendant clearly had not visited the premises before and therefore did not realise there were two workers inside the premises, and not one. On the other hand, the defendant purposely looked for vulnerable women who worked by themselves to rob.

It is not an excuse to say that one only brings along a knife to scare, with no intention of using it. The fact is that once a knife or such weapon is displayed, there is always the risk of someone getting injured. The present case is just one in point.

The defendant started transgressing the law since 14. Although he has been given many chances, from Probation Order to Community Service Order, then to a Rehabilitation Centre, finally to a Training Centre, he has not learned his lesson. Only two days after he was released from a Training Centre, instead of finding a job or using legitimate means to support himself, he resorted to robbing a woman working by herself in an apartment.

As the defendant had admitted, he realised that such a woman would have been an easy target for him to rob. He then went to buy a cutter and committed the present offences. Not only that he displayed the cutter but he actually used it to cut and injure both victims before fleeing from the scene of crime. The seriousness of this offence and the defendant’s background are not such that another Training Centre order would have been appropriate. In other words, the guidelines set down by the Court of Final Appeal in the case of Wong Chun Cheong V HKSAR (2001) 4 HKCFAR 12 do not apply here.

In the case of HKSAR v Lai Kwok Fai, CACC346/2008, it is a Chinese Court of Appeal judgment, the defendant, who was not a first offender, having two previous convictions of indecent assault, posed as a customer to gain entry into a one-woman brothel. He grabbed the neck of the woman and pointed a pair of scissors at the victim’s back to declare robbery. He fled when the woman put up resistance.

The case was heard in the District Court. The trial judge adopted a starting point of 7 years but reduced it to 6½ as the defendant was in financial difficulties. The defendant was given one-third discount upon plea and was sentenced to 4 years 4 months' imprisonment.

On appeal, the Court of Appeal referred to the case of Mo Kwong-Sang and said there were aggravating factors in that case: posing as a customer to gain entry into domestic premises, not only displaying the scissors but grabbing the victim’s neck and pointing the scissors at her neck. The Court of Appeal said that, as a sex worker, the victim was an easy target for would-be robbers. The Court of Appeal ruled that a starting point of 6½ years was not manifestly excessive. The Court of Appeal also pointed out that financial difficulties suffered by that defendant was not a ground for reducing the sentence.

It is clear that comparing the present case with the case I just quoted, the circumstances of the present case are more serious.

Although the defendant is guilty of three charges, the two wounding offences arose out of the same attempt to rob, so instead of adopting an individual sentence for each offence, I will adopt a global starting point, but bearing in mind that the wounding of the two victims are aggravating features of the attempted robbery.

Having considered all the circumstances of the offences and the defendant's background, I am of the view that a global starting point of 8 years is appropriate here. The defendant had pleaded guilty very early - at the Magistracy - and is therefore entitled to the whole one-third discount.

The sentence is therefore one of 5 years 4 months. I do not see any further reasons to reduce the sentence. So for these offences, the defendant is sentenced to 5 years 4 months' imprisonment for each of the three offences, all sentences to run concurrently, making a total of 5 years 4 months.