CRIMINAL CASE NO. 297 OF 2011
(1) two counts of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210. That is the 1st and the 3rd charge; and
(2) one count of attempted robbery, contrary to the same section and section 159G of the Crimes Ordinance, Cap. 200. That is the 2nd charge.
The defendant pleaded guilty to all three charges before a magistrate. He is committed to the Court of First Instance for sentence.
Summary of Facts
All three offences occurred within a time frame of two and a half hours on 15 February this year in the Kwun Tong area, and the defendant was caught red-handed shortly after he had committed the third offence.
In relation to the 1st charge, the victim of the 1st charge was a sex worker operating in a flat at Mut Wah Street, Kwun Tong, the kind of premises normally known as “one-woman brothel”. On 15 February 2011, the defendant went to the said Mut Wah Street premises and asked the victim what her service charges were. After obtaining the information, the defendant then left.
The defendant returned shortly. On this second occasion, the defendant pointed a 30 cm long knife at the victim and demanded for money. The defendant then dashed inside the premises and started ransacking the place. The victim was scared, and told the defendant she had no money. She gave her mobile phone to the defendant, and the defendant allowed her to retain her SIM card. She also gave her handbag to the defendant and the defendant took out nine laisee packets containing $180.
While the defendant was still ransacking the place, the victim sneaked out of the flat and went next door to report to the police. She later heard the defendant leaving. She lost her mobile phone and $180 laisee money during the robbery.
The 2nd charge. The victim of the attempted robbery is a young man. After the victim had gone to use an ATM machine, he went inside the lift of his building, which is Tsui To House at Tsui Ping Estate, to go home. The defendant also took the same lift. When the lift arrived on the 16th floor, the victim came out. While the victim was still at the lift lobby, he suddenly felt a hard object being pointed at his back. He turned, and saw the defendant holding an 8 inch pointed knife. The victim was scared, and ran home immediately. The matter was reported to the police. The victim did not suffer any loss or injury.
The 3rd charge. The 3rd charge happened at another building in Tsui Ping Estate. That is in Tsui Mui House. The victim was again a young man. He encountered the defendant on the ground floor lift lobby, and both entered the lift together. When the victim exited on the 25th floor, the defendant also exited, and told the victim to follow him to the staircase. Thinking that the defendant was a police officer, the victim did as told.
At the staircase, the defendant took out a knife and said to the victim that he recognised the victim as a former boyfriend of the defendant’s cousin. The defendant also said the victim was of “Wo Kee”, which the victim understood to refer to a triad society. The defendant ignored the victim’s denial, and told the victim to hand over his mobile phone. The defendant used that mobile phone to take a photo of the victim, saying that he would show it to his cousin to confirm.
The defendant then asked the victim which card in his wallet could be used to withdraw money. The defendant later escorted the victim to an ATM machine near the Tsui Ping bus terminus and forced the victim to withdraw $6,000 from the victim’s account, which had over $7,000 in deposit.
At this juncture, several police officers patrolled past, and one officer noticed the defendant’s clothing matched the description of the robber in the second offence. Police then intercepted the defendant and conducted a search. A knife was found at the waistband of the defendant’s shorts at his back.
The police arrested the defendant for the second incident, and under caution, the defendant admitted he had done the case at Tsui To House. He told the police that he robbed because he had run out of money. He also confessed that he was involved in the Mut Wah Street robbery earlier that day.
The defendant was further searched by the police, and 12 HK$500 notes and an iPhone were found inside his shorts’ pocket. Another police officer made inquiries from the victim and learned of the robbery. The defendant was then arrested for the third offence. Under caution, the defendant said he robbed the victim as he was in need of money.
The defendant was brought back to the Kwun Tong Police Station for further inquiries. He was found to have HK$170 in his possession upon further search. During a video‑recorded interview, the defendant admitted the three offences, and the knife found on his person had been used to commit all three offences. He admitted that $160 of the 170 found on him belonged to the sex worker after he had used part of the laisee money for a meal. He put the mobile phone belonging to the sex worker at his home after the second offence. He returned to commit the third offence after resting for half an hour at home.
During the house search at the defendant’s home at Tsui Yue House, Tsui Ping Estate, the mobile phone belonging to the sex worker was recovered. She also identified the knife seized from the defendant being the one used by the defendant when she was robbed.
The Defendant’s Background
The defendant is now aged 34. Before the offences, he resided with his father and brother at the Tsui Yue House flat. He is married, but his wife lives in the mainland.
The defendant is not a first offender. He had appeared in court on 14 occasions and had a total of 16 convictions. Most of the offences related to theft, burglaries, and possession of dangerous drugs. He has one previous conviction of robbery back in 1991, when he was 14, and he was put on probation for 18 months. His last conviction before the present offences was back in 2003.
I was provided with a psychiatric report prepared by Dr Lam Wai‑chung of the United Christian Hospital. According to Dr Lam, the defendant was first known to the Mental Health Service in August 2010 and was diagnosed to have dependence on Imovane and depressive disorder. Basically, the defendant was addicted to heroin since he was 14, and he used Imovane in 2008 to reduce his cravings for heroin. He then became dependent on Imovane. He was of low mood and had fleeting suicidal ideas in mid-2010.
He overdosed on 100 tablets of Imovane on 10 August 2010 and was subsequently referred to psychiatric treatment. On 25 August the defendant was diagnosed to have hypnotic dependence and depressive disorder. He was treated with antidepressant and given counselling. While the defendant claimed in October during a follow-up treatment that he had reduced his daily intake of Imovane, he defaulted outpatient treatment scheduled later. The last time he was seen was in January 2011. His speech then was relevant and his mood had improved. He was prescribed antidepressant, with the next follow‑up scheduled for April 2011.
In mitigation, Mr Caesar Lo, counsel for the defendant, informs me that the defendant was depressed and feeling worthless at the time of the offences. He took some 15 Imovane on the day in question when he had been decreasing the dosage earlier, so the effect of the Imovane on him on that day was more serious. He was in need of money, and under the influence of Imovane, he committed the robberies. He even committed two of the robberies at the same estate where he lived.
Mr Lo makes it clear to me that the defendant is not saying that his depression or his addiction are excuses for committing the present offences, but merely background information for me to know why he had committed these serious offences. Mr Lo accepts that the fact that the defendant forced the third victim to disclose his bank balance amounts to an invasion of the victim’s privacy, which he says is something “additional” to the robbery offence.
Mr Lo asks me to nevertheless take into account that the defendant did not take all the money from the third victim when he could have done so. Furthermore, only the first victim suffered a loss of $20, the other victims suffered no loss. Mr Lo also accepts that the only mitigation in the case is the defendant’s plea of guilty, and that the present case falls under the guidelines of the case of Mo Kwong Sang.
In each of the three offences the defendant used a knife to threaten the victim. I have viewed the knife in question. While it is not a chopper, it is a formidable-looking knife, a meat cutter, capable of causing serious injuries to people. No wonder the victims were scared when the defendant used the knife against them.
In the case of Mo Kwong Sang, 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 invasion of private premises, a sentence of 6 years would be appropriate. If physical violence is used a sentence of 7 years should be considered. If other aggravating factors are present, such as invasion of domestic premises at night, threats made to victims, ill-treatment of victims, multiplicity of offences of a similar kind, or more than one person taking part in the robbery, the sentence should be increased.
The guidelines in Mo Kwong Sang were reaffirmed by the Court of Appeal in the case of Ma Ping Wah.
The defendant had committed a series of offences within a very short period of time. In the case of Tong Hoi Fung, the Court of Appeal held that where there was more than one offence of a similar nature committed at different times, it was right for the court to impose a greater sentence than if there had been only one offence.
The First Offence
The robbery took place in a one-woman brothel. The defendant acted as a customer asking for the price when he first went to the premises. He later returned and robbed the victim at knifepoint. The robbery was committed on a lone woman in private premises with the use of a knife.
Having considered the cases of Cheng Fuk Wa, Lai Kwok Fai and Tam Kwok Keung, all involving robbery or attempted robbery of prostitutes in one-woman brothels, and having taken into consideration the background of the defendant, I am of the view that a starting point of 6 years is appropriate for this offence.
The Second Offence
This offence took place shortly after the first offence. The defendant pointed the knife at the back of the victim, and when the victim turned around, he was able to see the knife. The defendant was not successful in robbing this victim. The victim did not sustain any loss or personal injury.
Having considered all the circumstances, I am of the view that a starting point of 5½ years is appropriate for this offence.
The Third Offence
This is the last of three offences committed on the same day by the defendant. According to the defendant’s own confession, he went home to rest for half an hour after committing the second offence before he went out to rob the victim in the third offence.
The use of the knife under the circumstances warrants a starting point of 5½ years, bearing in mind that this is the third time within the same day that the defendant used the knife to rob. Further, in my view, although the defendant did not pocket the victim’s bank card, the way he forced the victim to operate the ATM so that he could see the amount of deposit in the victim’s account, and the fact that he forced the victim to withdraw most of his savings, the $6,000 out of about $7,900, is an aggravating feature in this case. No doubt there was a sense of violation of privacy suffered by the victim. I refer to the case of Sun Sheung Chung here.
I am of the view that an enhancement of 6 months is appropriate. I am therefore of the view that a starting point of 6 years is appropriate in relation to this offence.
While the defendant was caught red-handed during his commission of the third offence, he nevertheless co‑operated with the police and made a confession of his involvement in all three offences. He also pleaded guilty at the earliest possible opportunity. I will give him the full one‑third discount.
After giving the discount, the sentence for each of the three offences will be:
1st charge, 4 years;
2nd charge, 3 years 8 months; and
3rd charge, 4 years.
As all three offences were committed at different times of the day, at different places, and involving different victims, ordering all the sentences to run concurrently would be against established principles. I need to, however, consider the totality of these sentences to come to a proper overall sentence.
The aggregate of these sentences amount to 11 years and 8 months. Having considered the circumstances of all the offences, I am of the view that a total of 8 years would properly reflect the criminality of the defendant in these offences.
For the 1st charge, the defendant is sentenced to 4 years’ imprisonment.
For the 2nd charge, 3 years 8 months’ imprisonment, to run concurrently with the 1st charge.
For the 3rd charge, 4 years’ imprisonment, to run consecutively to the 1st charge, but concurrently with the 2nd charge; making a total of 8 years.