HKSAR v. LAM SUET MING

DCCC 113/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 113 OF 2012

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REASONS FOR SENTENCE

1.  The defendant pleaded guilty to a charge of "Attempted Robbery". The defendant tried to rob a bank using a threatening note.

2.  Madam CHUNG Wing Yee (PW1) was a teller of Asia Commercial Bank situated at Nos.185-187 Castle Peak Road, Tsuen Wan (the "Bank").

3.  About 4:30 pm on 4 October 2002, PW1 was working at Counter No.3 in the Bank.  A male (later found to be the defendant) approached PW1, placed a transparent plastic bag containing some newspaper on her counter, handed her a folded piece of paper ("E1") and told her that he would like to deposit a cheque.  PW1 looked at E1 and discovered that it was a withdrawal slip of another bank with words written in Chinese:  "Robbery, HK$150,000, gun inside the newspaper!  Don't move!"  At the same time, the defendant put his hand into the plastic bag which contained newspaper.

4.  PW1 pressed the alarm button stealthily and told the defendant that she had insufficient money.  The defendant told PW1 to give him whatever amount she had.  PW1 rushed to the back office and saw the defendant leaving the Bank.  The Police was alerted and E1 was seized.

5.  The CCTV of the Bank had captured the image of the defendant.  The defendant's left thumb print was also found on E1. The defendant's identity was thus revealed.

6.  On 1 December 2011, the defendant was arrested by the Police at his home.  Under caution, the defendant admitted that he robbed since he was in need of money.  He claimed that he did not have any gun with him at the time, and there was just newspaper inside the bag.  In his video interviews, the defendant admitted, inter alia, that the words on E1 including "Robbery" were written by him.  Photographs extracted from the relevant CCTV footage of the Bank were shown to the defendant.  He admitted that the culprit depicted in the photos was him.

7.  The defendant is now 34.  He committed the present offence when he was 24.  He had a clear record then.  He now has 2 dissimilar convictions dated 2003 and 2005.

8.  Defence counsel Mr. YU submitted that at the time of this offence, the defendant's mother, who passed away in 2011, was suffering from a brain disease (Communicating Hydrocephalus).  The defendant foolishly engaged in this illegal act to obtain some quick money.  On the other hand, Mr. YU suggested that the modus operandi adopted by the defendant was unsophisticated and not well-planned at all.  The defendant did not wear a surgical mask or a hat to conceal his identity.  He did not even wear any gloves, which resulted in leaving his fingerprint on E1.  Furthermore, no weapon was used or displayed.  According to PW1's witness statement, she did not think there was a gun inside the plastic bag since the newspaper was not thick enough. Mr. YU submitted that PW1 was not frightened since she was daring enough to chase after the defendant.

9.  Mr. YU informed me that the defendant has completely reformed himself after he met his girlfriend in 2005.  Despite having completed only F.3 education, the defendant has worked his way up from driver to site supervisor in an interior design company in the past few years. His employers and colleagues all speak favourably of him.  The defendant also has a stable girlfriend and they had planned to get married this year.  The contents of all mitigation letters placed before me are duly noted.

10.  Mr. YU has pointed out that according to the Fingerprint Examination Report, the Police had confirmed the robber's identity being the defendant as early as March 2009.  Whilst not complaining there was any delay caused by the Police, the fact remains that the defendant was not arrested until December 2011.

11.  Finally, Mr. YU has referred me to the Reasons for Sentence given by Barnes J in HKSAR v HEUNG Siu-lun HCCC 273/2011.  The facts of that case bear some similarities with the present case.  Her Ladyship accepted that it was not a sophisticatedly planned robbery, and its execution was amateurish.  The learned judge also accepted that defendant committed the offence out of stupidity when he found himself faced with a financial problem.  As a result, a starting point of 6 years' imprisonment was adopted.

12.  I have also taken into consideration of the Court of Appeal decision in HKSAR v NG Wing Chung CACC 176/2005.  In that case, a starting point of 7 years' imprisonment was upheld for an attempted robbery which involved using a note threatening gasoline against a teller in a bank.

13.  Time after time, the court has expressed in very clear terms that having a sick family member or being in financial difficulty (however serious) is no mitigating factor for committing a crime.  I cannot stress this enough.  Furthermore, a clear message must be conveyed to the general public that bank robbery (even though unsuccessful) is a dead serious crime and the offenders of which would most certainly be punished by long-term imprisonment.

14.  I accept what the defendant did was unsophisticated and, in fact, amateurish.  No measure was taken to conceal his identity.  His stunt about having a gun was nowhere convincing enough to cause PW1 any fear.  I have also borne in mind Mr. YU's closing remark that this case will destroy everything the defendant and his girlfriend have built in the past 7 years.  Having considered all aspects of this case, I take the view that the appropriate starting point should be 6 years' imprisonment, which reflects sufficiently a balance struck between the seriousness of the defendant's act and an element of mercy.  A one-third discount is given for the guilty plea, reducing the sentence to 4 years.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence I pass is therefore 4 years.