HKSAR v. GUAN BAISHENG

DCCC 392/2020

[2020] HKDC 1158

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 392 OF 2020

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Attempted robbery". He tried to rob someone with a lit lighter.

Summary of Facts

2.  Mr. Wong (PW1) was residing at a unit on the 14^th Floor, Kwai Leung House (Block 1), Lower Ngau Tau Kok Estate ("the Flat").

3.  About 7:30 p.m. on 31 December 2019, PW1 entered Kwai Leung House from its Ground Floor front entrance.  He noticed a man (later known as the defendant) wandering there. PW1 entered Lift No.2 and the defendant followed him.  Only two of them were in the lift.

4.  PW1 pressed the button for his floor and the defendant did not press any button.  PW1 walked out of the lift on the 14^th Floor and paid no further attention to the defendant.  When he opened the door of the Flat, the defendant suddenly appeared on PW1's left with a distance of about one body's space.  The defendant took out a lighter from his trouser pocket and lit it in front of PW1.  He then told PW1 to surrender all his money.  PW1 immediately closed the door of the Flat and brought the defendant into the lift.  Upon reaching the Ground Floor, PW1 handed the defendant to the security guard and asked him to alert the Police.

5.  Police officers soon arrived and arrested the defendant for the present offence.  Under caution, he stated that he knew he had been arrested and had nothing to say.  A lighter was found on the defendant, but no cigarettes were found.

6.  In his video recorded interview, the defendant admitted that he was residing at Upper Ngau Tau Kok Estate.  He claimed that he intended to go home, but went to Lower Ngau Tau Kok Estate for unknown reasons.  He claimed to be suffering from schizophrenia and had been attending a public psychiatric clinic for about a year.  He was prescribed with psychiatric medication.  The defendant also admitted that he took out a lighter and lit it in front of PW1.  He did not know PW1.

Mitigation & Sentence

7.  The defendant is 42 and single.  He has 4 conviction records, which included 1 "Wounding 17" offence and 2 "Criminal intimidation" offences.  Defence counsel Mr. Cheung informed me that the defendant moved to Hong Kong from the mainland in 2007. He is unemployed and resides with his parents.

8.  In mitigation, Mr. Cheung submitted that the defendant has a history of substance abuse.  He was first diagnosed with drug-induced psychosis in 2015.  Mr. Cheung pointed out that the present offence was committed in an unusual way.  The defendant picked someone who had a stronger built than him as his target and used a lighter as his "weapon".  PW1 was not scared and he brought the defendant to the security guard.  At the same time, the defendant was all along cooperative; he did not resist PW1 or tried to run away at any stage.  Mr. Cheung invited this court to sentence the defendant on the basis of "unarmed robbery" and reduce the starting point due to the defendant's mental illness.

9.  In order to gain a better understanding of his mental health history and to ascertain the necessity of a Hospital Order, I have called for 2 psychiatric reports on the defendant. According to the reports, the defendant revealed to the psychiatrists that he took some dangerous drugs on the day of the offence and could only recall being questioned at the police station. Both psychiatrists take the view that the defendant does not require in-patient treatment, but needs follow-up at psychiatric clinic.

10.  A clear message must be conveyed to the general public that robbery is a dead serious crime and that the offenders would most certainly be punished by long-term imprisonment. I accept that the present offence should not be regarded as an armed robbery. I have borne in mind the Court of Appeal's decisions in HKSAR v Ting Chiu & another [2003] 3 HKLRD 378 and HKSAR v Lam Chun Nam [2008] 2 HKCLRT 137 regarding the sentencing of unarmed robberies. According to HKSAR v Chan Sai Chiu [2001] 1 HKLRD 478, for a robbery involving "pepper-throwing", the appropriate starting point is 4 years' imprisonment.

11.  Since the present robbery was unsuccessful; PW1 suffered no loss and was not even scared, I consider a starting point of 3.5 years' imprisonment to be just and appropriate. With the timely guilty plea, the sentence is reduced to 28 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 28 months' imprisonment for this charge.

12.  The defendant's psychiatric conditions are self-induced by drug abuse. He needs to stay away from dangerous drugs. I invite the Commissioner of Correctional Services to arrange for the defendant to continue to receive the necessary psychiatric treatment and medication.