HKSAR v. LI SIU WAH also known as LI WA

DCCC 57/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 57 OF 2016

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REASONS FOR SENTENCE

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CHARGES

1.  On 3 March 2016, the defendant pleaded guilty to 6 charges before me.

2.  The statement and particulars of offence of the 6 charges are as follows:-

Charge 1: “Robbery”, on 23 June 2015, Yu Chau Street, Sham Shui Po, the defendant robbed one ring.

Charge 2: “Theft”, on 27 August 2015, at G/F, No 350 Un Chau Street, Cheung Sha Wan, the defendant stole one wallet, cash of HK$1,900, one HKID Card, one Octopus card and one Visa card.

Charge 3: “Theft”, on 10 October 2015, outside No 312 Lai Chi Kok Road, Sham Shui Po, the defendant stole cash of HK$1,000, cash of RMB100 and one Octopus card.

Charge 4: “Theft”, on 13 October 2015, outside Mei Hung House, No 52 Berwick Street, Sham Shui Po, the defendant stole one wallet, one HKID card, one Home Visit Permit, one driving licence, one Senior Citizen Card, one Octopus card and cash of HK$600.

Charge 5: “Theft”, on 24 October 2015, near the junction of Woh Chai Street and Nam Cheong Street, Shek Kip Mei, the defendant stole one bag, one HKID card, one Home Visit Permit, cash of HK$3,000 and two keys.

Charge 6: “Burglary”, on 28 October 2015, in Hong Kong, having entered as a trespasser part of a building known as Room 608, Un Lok House, Un Chau Estate, Cheung Sha Wan, the defendant stole therein cash of HK$800.

FACTS

3.  The defendant also agreed to the Amended Summary of Facts.

Charge 1

4.  On 23 June 2015, at around 10:45 am, the defendant approached Leung Shun Pok (“Leung”), aged 89 at the junction of Pei Ho Street and Yu Chau Street, and claimed to be a staff of the Social Welfare Department (“SWD”).

5.  The defendant told Leung that he had been trying to locate Leung in order to give him some welfare funds.  The pair then arrived outside Hong Kong Jockey Club, Yu Chau Street, Sham Shui Po, Kowloon, Hong Kong and the defendant demanded to check the properties of Leung.

6.  The defendant found out that Leung was wearing a golden ring on the fourth finger of his left hand. The defendant requested Leung to hand over the ring for registration.  Leung refused.

7.  Nevertheless, the defendant grabbed Leung’s left hand and took the ring off Leung’s finger forcibly.  Leung could not resist as he lacked the strength to do so.  The defendant managed to take the ring (worth HK$2,000) and left the scene immediately.  The case was reported to the police.

Charge 2

8.  On 27 August 2015, at around 10:26 am, when Au-Yeung Hou Yin (“Au-Yeung”), aged 83 was shopping alone inside the Cheung Hing Wholesale Store situated at Ground Floor, No 350 Un Chau Street, Cheung Sha Wan, Kowloon, Hong Kong, the defendant approached him and claimed to be a staff of SWD handling Au-Yeung’s case.

9.  The defendant then took Au-Yeung’s wallet from his right back pocket.  The wallet had cash of around HK$1,900, his HKID card, an Octopus card and a Wing Hang Bank Visa card. Later, the defendant told Au-Yeung that he was going to bring him some medicinal oil but the defendant fled with Au-Yeung’s wallet.  The case was reported to the police afterwards.

Charge 3

10.  On 10 October 2015, at 11:00 am, when Chan Chun Tai (“Chan”), aged 87 walked pass outside No 312 Lai Chi Kok Road, Sham Shui Po, Kowloon, Hong Kong, the defendant approached her and claimed to be a staff of SWD.

11.  The defendant discussed elderly welfare matters with Chan and suddenly unzipped Chan’s bag and took away cash of HK$1,000 and RMB100 and one Octopus card.  The defendant immediately ran away and Chan was unable to catch him.  The case was reported to the police.

Charge 4

12.  On 13 October 2015, at 7:45 am, when Lee Kai Sit (“Lee”), aged 76 was exercising at Shek Kip Mei Estate, Sham Shui Po.  The defendant suddenly approached him and offered a body massage to him.  They did so outside Mei Hung House, No 52 Berwick Street, Sham Shui Po, Kowloon, Hong Kong.

13.  After massaging Lee for around 10 minutes, the defendant told Lee that he would leave for a while to get some medicinal oil to continue the massage.  However the defendant never came back.  Lee later checked and found that his wallet went missing.  The wallet contained cash of HK$600, Lee’s HKID card, his Home Visit Permit, his driving license, one Senior Citizen Card and one Octopus card.  The case was reported to the police.

Charge 5

14.  On 24 October 2015, at 10:00 am, when Mak Ngan Chee (“Mak”), aged 85 walked past Woh Chai Street, near the junction of Woh Chai Street and Nam Cheong Street, Shek Kip Mei, Kowloon, Hong Kong, the defendant approached Mak and claimed to be a staff of SWD.  The defendant told Mak that she has some outstanding ‘Old Age Allowance’ to be collected and the defendant would help her to collect the sum.

15.  The defendant then took Mak’s bag containing her valuables, including Mak’s HKID card, her Home Visit Permit, cash of HK$3,000 and two keys of her insurance boxes.  The defendant told Mak to wait while he went to collect the ‘Old Age Allowance’.  The defendant never returned and the case was reported.

Charge 6

16.  On 28 October 2015, the defendant approached Liu Sui Ha (“Liu”), aged 80 outside Po On Road Market, Cheung Sha Wan, and claimed to be a staff of SWD.  He requested a home visit and Liu brought him back to her home at Room 608, Un Lok House, Un Chau Estate, Cheung Sha Wan, Kowloon, Hong Kong.  The defendant then asked Liu to show him her savings.  Liu showed the defendant cash of around HK$800 but soon put the money back to a drawer.  Afterwards, as the defendant asked for a glass of water, Liu went to the kitchen.

17.  When Liu returned with a glass of water, the defendant had left and Liu’s cash went missing.

18.  Liu later relayed this incident to her social worker, Mo Wing Sze on 30 October 2015, who in turn reported the case to the police.

Arrest of the defendant

19.  The defendant was arrested on 9 November 2015 at his residence at Wai Yuen house, Wong Tai Sin.

20.  Under caution, he admitted the 6 offences.

21.  Upon his own plea and admission of the facts, he is convicted of all 6 charges.

CRIMINAL RECORDS & ANTECEDENT STATEMENT

22.  I have marked the defendant’s criminal records as “MFI-1”.  The contents of the records are agreed by the defence. The records show that the defendant has numerous convictions.  Amongst the convictions, there are 3 convictions of robbery, at least 5 of burglary, 20 of theft and 1 conviction of impersonating a police officer.

23.  I have marked the English version of the defendant’s antecedent statement as “MFI-2A” (Chinese version as MFI-2B).  The contents of the statement is agreed by the defence.  The defendant was born in 1945.  He is now 71 years old.   He was educated up to Primary One.  He worked as a restaurant waiter.  He was unemployed at the time of the arrest on 9 November 2015.  He relies on a monthly CSSA of HK$3,300.  He is married and has no children.  He is a drug addict.  He claims to have suffered from asthma and pulmonary emphysema for some 10 years.

24.  Miss Margaret Lau, Senior Public Prosecutor, drew my attention to the case of HKSAR v LI Siu Wah CACC 389 of 2008.  I was told by Miss Lau, with the confirmation by the defence, that the appellant of that case is the very man in the dock, that is the defendant himself.

25.  I was also told by Mr Kwok Wing Lung, solicitor for the defendant, that the defendant was last released from prison in April 2015.

MITIGATION

26.  On behalf of the defendant, Mr Kwok had provided me a set of written submissions dated 3 March 2016.  

27.  The defence emphasized that the defendant cooperated with the police, that the victims of the 6 charges were not able to identify the defendant in identification parades and that without the defendant’s own admissions, the prosecution would have insufficient evidence in laying the charges against the defendant.

28.  For all charges, the defence submitted that no injuries were incurred by the victims and no weapons were used.  The value of the property stolen was comparatively small.

29.  Furthermore, Mr Kwok had urged me to view a CCTV disc (marked as MFI-3) capturing the occurrence of the events for charge 1.  I have seen the CCTV disc in open court.  The defence suggests that the “force used” was rather low for a charge of robbery. 

30.  I then adjourned sentence to today (18 March 2016) for a background report. 

31.  Since I required some assistance regarding sentencing, on 3 March 2016, I invited both parties to file further written submissions, which they did. 

BACKGROUND REPORT

32.  Today, I understand that the contents of the background report are agreed by the defence.  The report states that firstly his wife would visit him every time when he was in prison. Secondly, at the time of committing the offences, he did not bother whether the victims were of old age or under privileged.  Thirdly, he stated that those victims were his easy targets.  Fourthly, the defendant committed the present offences, because he was in need of money to fuel his dangerous drugs consumption. 

AGGRAVATING FEATURES

33.  Before I pass sentence, I find that there are 4 aggravating features common to all charges. 

34.  First, the defendant is not a stranger to the criminal courts.  He is a persistent offender.  He has previous convictions similar to the present charges.  He simply has an appalling criminal record.

35.  Secondly, imitating as an officer of the Social Welfare Department is an aggravating feature in Charges 1, 2, 3, 5 and 6.  This would jeopardize the public trust in Social Welfare Department officers.  If trust is lost, it would render the officers to encounter difficulties in providing theirs services to those in need.  Claiming to be a Chinese medical practitioner is an aggravating feature in charge 4. This would compromise the image of the profession and faith that patients have in it in receiving medical treatment.

36.  Thirdly, the defendant committed the offences in deceit and in manipulation of the victims.

37.  Fourthly, senior citizens were the defendant’s targets for his crimes, with the youngest being 76 years old.  He preyed on elderly victims who were unable to fend for themselves, knowing they were easy preys.  Vulnerable victims were involved. The crimes were just nasty, wicked and mean.  The Defendant took advantage of and abused the aged.

SENTENCE ON EACH CHARGE

38.  I have carefully considered the mitigation advanced by Mr Kwok.  I believe Mr Kwok had done his best in submitting everything he could on behalf of the defendant.

39.  I appreciate that the defendant is now 71 years old.  Nonetheless, I refuse to reduce sentence based on this factor, because he has committed the crimes with his eyes wide open. See HKSAR v Kwok Sau Chun HCMA 543 of 2010, which involved an 82 old offender.

40.  I now turn to the defendant’s own admissions under caution, which formed the basis of the prosecution’s case.  Having considered the cases of HKSAR v NG Wing Chung CACC 176 of 2005 and HKSAR v Chu Kwok Chu [2013] 6 HKC 357, and in the circumstances of this particular case, I would not exercise my discretion to reduce the sentence of any of the charges.

41.  Indeed, the only mitigation factor is the timely plea of guilty of the defendant sparing the victims to come to court to testify.

42.  Sentence for Charge 1: I agree with Mr Kwok that the “force used” was at the lower end for a charge of robbery after seeing MFI-3.  Based on HKSAR v Lee Siu Wah CACC 389 of 2008 and the aggravating features identified, I shall take a starting point of 42 months.  I reduce it by one-third to reflect the guilty plea, arriving at 28 months of imprisonment.

43.  Sentence for Charge 2: This offence is akin to pickpocket cases.  I am sure that the defendant’s offence was not an opportunistic one.  Planning and premeditation were clearly involved.  Based on HKSAR v Yeung Kam Tung CACC 427 of 2012, I shall take a starting point of 15 months of imprisonment and enhance it by 3 months for the aggravating features as identified, arriving at 18 months of imprisonment.  I reduce it by one-third to reflect the guilty plea.  Defendant is sentenced to 12 months of imprisonment.

44.  Sentence for Charge 3, based on the same reasons for Charge 2, I shall take a starting point of 15 months of imprisonment and enhance it by 3 months for the aggravating features as identified, arriving at 18 months of imprisonment.  I reduce it by one-third to reflect the guilty plea.  Defendant is sentenced to 12 months of imprisonment.

45.  Sentence for Charge 4, based on the same reasons for Charge 2, I shall take a starting point of 15 months of imprisonment and enhance it by 3 months for the aggravating features as identified, arriving at 18 months of imprisonment.  I reduce it by one-third to reflect the guilty plea.  Defendant is sentenced to 12 months of imprisonment.

46.  Sentence for Charge 5, based on the same reasons for Charge 2, I shall take a starting point of 15 months of imprisonment and enhance it by 3 months for the aggravating features as identified, arriving at 18 months of imprisonment.  I reduce it by one-third to reflect the guilty plea.  Defendant is sentenced to 12 months of imprisonment.

47.  Charge 6: The defendant burgled into a residential property.  He gained entry by deceit.   Although I appreciate the customary sentence for residential premises burglary is 36 months as a starting point, based on HKSAR v Lui Yuen Shun CACC 322 of 2006, I am of the view that a starting point of 45 months’ imprisonment is appropriate after having enhanced it by 9 months from 36 months, based on the aggravating features identified.  I reduce the 45 months by one-third to reflect the guilty plea.  The defendant is sentenced to 30 months of imprisonment.

OVERALL SENTENCE

48.  The sentence for each charge is thus as follows:-

(a) Charge 1: 28 months of imprisonment

(b) Charge 2: 12 months imprisonment

(c) Charge 3: 12 months imprisonment

(d) Charge 4: 12 months imprisonment

(e) Charge 5: 12 months imprisonment

(f) Charge 6: 30 months of imprisonment

49.  Based on the totality principle to reflect the overall culpability of the defendant, I order that 6 months of the sentence imposed on each of Charges 2, 3, 4 and 5 to run consecutively to the 28 months’ sentence on Charge 1 arriving at 52 months of imprisonment.  Furthermore, I order that 15 months of the sentence imposed on Charge 6 to run consecutive thereto, making an overall sentence of 67 months of imprisonment.

50.  Lastly I thank both Miss Margaret Lau, Senior Public Prosecutor and Mr Kwok, solicitor for the defendant for their helpful submissions.