HKSAR v. LAM CHING DONG

DCCC212/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 212 OF 2011

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one offence of burglary, one offence of a part I poison and eight offences of Theft. At the outset of the proceedings the defendant pleaded not guilty to the first charge of Robbery. He pleaded guilty to the remaining nine charges.

2.  At the conclusion of the prosecution case and after the admission of the defendant’s admissions to the police, the defendant changed his plea on the robbery, Charge 1, to guilty.  The defendant has agreed the facts to Charges 2 to 10.  I heard

the prosecution case and evidence on the 1st Charge. I convicted the defendant on all the charges.

3.  On the 1st Charge, I heard from the first prosecution witness, a police officer.  On the evening of 6 November he went off duty and commenced drinking.  At 5.30 am on the next day he decided to go home.  He was alone.  As he walked along Nathan Road in the vicinity of Tsim Sha Tsui Police Station, a car drew up and the defendant alighted. 

4.  The first prosecution witness was approached by the defendant, held and supported by him, and was told to get into his car.  As the defendant supported PW1, he loosened the catch of PW1’s watch.  PW1 asked the defendant what he was doing; the defendant gave no reply.  He took the watch and pushed PW1 to the ground.  The first prosecution witness said he tried to stop the defendant taking his watch and to try to pull his hand away. At that time the defendant had taken the watch off.  The watch was, in fact, recovered from the defendant’s house when he was arrested on 11 December 2010.

5.  I also heard evidence about a record of interview which contained admissions whereby the defendant admitted taking PW1’s watch.  He said he’d had a dispute with the male, which is PW1, where this person sat on the bonnet of his car and had taken the watch as he wanted to teach him a lesson.  In respect of the facts of this charge I found PW1 to be a truthful and reliable witness as to how the robbery took place.  I found that PW1 was the worse for drink as he admitted.  The defendant did take hold of him and removed his watch with sufficient force to overcome PW1’s attempts to stop him.  PW1 was pushed to the ground by the defendant in order to affect the robbery.  PW1 suffered some minor injuries including abrasions of the elbow. 

6.  In respect to the other charges the defendant admitted the facts presented by the prosecution.  These show the defendant was stopped on suspicion of robbery in the early hours in the morning of 11 December 2010.  The defendant’s car was searched and two bottles of cough syrup containing codeine were found.  This made them a Part I poison as they were obtained without a prescription and that constituted the basis of the facts on which the 10th Charge was proved. 

7.  The remaining charges were Charges 2 through to 9 and these result from a search of the defendant’s house.  A number of items were seized and they were subsequently found to be stolen and formed the basis of those charges.  Charges 8 and 9 relate to two black Iphone 4s which were seized.  Charges 5 and 6 relate to two white Iphone 3s that were seized. Charge 2 relates to one Emporio Armani watch which was seized.  Charge 3 related to an Ipac flash drive.  Charge 4 related to a Motorola mobile phone.  On 28 October 2010 the defendant’s car had been seized and one black Iphone 3 and its shell cover had been seized from the defendant’s car.  The theft of these items was charged in Charge 7. 

8.  The defendant admitted in relation to all the items that constituted the items stolen in the Charges 2 through to 9 were stolen by him on various occasions.  They were stolen late at night or in the early hours in the morning from different owners in the years 2009 and 2010.  The thefts were committed in public areas of Kowloon.  The owners were drunk or asleep or were so drunk that they were inattentive to their own personal property.  The owners of these items were unknown to the defendant; he observed their drunken state and committed the thefts.  The charges relate to unknown dates within 2009 and 2010 in Hong Kong.  The earliest charge date being 2 September 2009 and the latest being 7 December 2010. 

9.  Now, turning to the defendant’s antecedents they show that he had four previous convictions.  Of significance to these charges are a conviction in 2008 when he was convicted of theft and fined.  And a conviction in 2010 where, for another offence of theft, the defendant was sentenced to 100 hours of community service.  Some of these offences were necessarily committed during the currency of the community service order the defendant was serving so the defendant was in breach of this order. 

10.  It was necessary for me to deal with this so I obtained a report as to his compliance with the community service order.  This also contained background information.  This shows that the defendant is aged 29 years.  He originally came from the Mainland and was brought up in a single parent family from the age of 12.  He commenced employment at the age of 16. Since 2009 he’s worked in a bar in Tsim Sha Tsui and earns about $8,000 per month.  He provides support to his mother. 

11.  In respect to the community service order he had completed 90 hours of the ordered 100 hours.  His performance of the work was interrupted by his being remanded in custody for these offences.  He was described as having an above average work performance.  The report says the defendant has gained insight into his behaviour. 

12.  In passing sentence for these offences, I bear in mind the defendant has eventually pleaded guilty to all these offences. Obviously in respect of the plea of guilty to the robbery this was not at an early stage of the proceedings.  Such a plea of guilty, however, will still be recognised as deserving of a deduction from an original starting point for sentence. 

13.  In circumstances such as these where the defendant has required the calling of a prosecution witness and the proving of the admissibility of statements to the case through voir dire proceedings, the full one-third discount cannot be given in respect of that charge. I consider that a lesser discount of 20 per cent from the original starting point of the sentence will be appropriate in these circumstances.  

14.  I now deal with the starting point for sentence in respect of the individual charges.  I deal with the 1st Charge, the charge of robbery.  In determining the starting point for sentence I note that this is an offence of what can be described as an unarmed robbery committed by one person at night with not a great deal of force being used, although the victim was pushed over and suffered some swelling and abrasion over the left elbow.  I note an authority for sentencing in which a starting point of 4 years’ imprisonment was adopted for an unarmed robbery.  This, however, was a case where more than one person was involved. 

15.  In this case, of course, only the defendant was involved.  So I considered that I will adopt a lower starting point than 4 years’ imprisonment.  I consider the appropriate starting point for sentence in respect to Charge 1 will be 40 months’ imprisonment.  From this there will be a deduction of 20 per cent for the defendant’s plea of guilty, leaving a sentence of 32 months’ imprisonment as being the final sentence on Charge 1.

16.  The theft charges, Charges 2 to through to 9 are similar and are opportunistic thefts on unsuspecting victims in public places and can be likened, in terms of sentencing, to offences of pick-pocketing. Although the defendant has committed thefts before, this is the first offence of the nature of pick-pocketing or of theft in this manner and I consider that a starting point of 12 months’ imprisonment would be appropriate to be adopted in respect of each of these charges. 

17.  The defendant pleaded at the first instance to these offences so a deduction of one-third is appropriate in these cases.  This means that in offences from 2 through to 9 there will be a sentence of 8 months’ imprisonment on each charge.  Although I still have to sentence in respect to Charge 10 and the breach of community service order, I will consider these charges in respect to overall totality at this point.  These offences, of course, form part of a series of offences committed over a period of time so they must, to an extent, be considered to be served consecutively to one another.

18.  I wish to achieve what I consider to be a correct overall totality.  I shall do that by ordering that Charges 2 through to 5 be served concurrently to each other.  And 6 through to 9 concurrently to each other.  I shall order that the 8 months’ imprisonment in respect to Charges 2 through to 5 will run consecutively to the 32 months’ imprisonment on Charge 1.  I will order that the 8 months’ imprisonment in Charges 6 to 9 will run 4 months concurrently to the sentences on Charges 1 through to 5 and 4 months consecutively to the sentences in Charges 1 through to 5. 

19.  This gives an overall total sentence for Charges 1 through to 9 of 44 months’ imprisonment.

20.  In respect of Charge 10, I consider after the deduction for a plea of guilty a sentence of seven days’ imprisonment to be appropriate.  I will order, however, that that runs concurrently to the other charges.  I must deal with the breach of the community service order.  I will do that by revoking the community service order.  I will sentence again for that offence and impose a sentence of one months’ imprisonment. 

21.  Having regard to the fact the community service order was almost entirely completed by the defendant and his performance was considered to be very satisfactory, I will in fact order that that sentence of one months’ imprisonment is to run concurrently to all the other sentences imposed today. 

22.  This will leave a total overall sentence in respect of all 10 offences and the breach of community service order of 44 months’ imprisonment and it is the sentence I impose