HKSAR v. MA TAT

REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of attempted robbery, contrary to section 10 of the Theft Ordinance, Chapter 210 and section 159G of the Crimes Ordinance, Chapter 200.

2.  In summary at about 11:15 am on the 4th April this year the defendant, armed with a folding saw, entered the Li Yuen Beauty Salon in Wong Tai Sin.  The defendant went into Room 1 where Madam Lam was serving a customer and took out the folding saw from his rucksack, which he pointed at Madam Lam and declared robbery.  The defendant then put the folding saw back in his rucksack and tied up Madam Lam with a pair of plastic cuffs. 

3.  Meanwhile Madam Leung who was serving another customer in Room 2 heard some noise coming from Room 1 and called the police.  After tying up Madam Lam the defendant went to Room 2.  Before the defendant reached Room 2 Madam Lam managed to release the cuffs and ran to the main door of the salon and raised a hue and cry.  The defendant chased after Madam Lam and grabbed hold of her clothes to pull her back inside the salon.  Madam Leung got hold of the defendant’s jacket whilst Madam Lam scratched the defendant’s face.  Madam Lam was then able to leave the salon and ran onto the street screaming for help and shouting robbery.

4.  The defendant then left the salon and ran towards Wong Tai Sin Temple.  Madam Lam chased after the defendant but fell down and soon lost sight of him.  The defendant had however in the process of the robbery dropped his wallet in the salon, inside which was his identity card and address.  The defendant also left behind a plastic bag, which I am told contained 97 plastic strips, similar to the one used to tie up Madam Lam. 

5.  The police went to the address where they lay ambush.  At 12.09 the same day the defendant returned to the address and was arrested by the police.  Under caution the defendant admitted committing the robbery because he owed $100,000 in credit card debts.  The defendant said he had bought the folding saw and the plastic cuffs that morning and then drove the company car looking for a target shop.  The folding saw was recovered from the company car.

6.  In passing sentence I have carefully considered everything said on the defendant’s behalf by Mr Vidler together with the letters submitted to court.  I take into account the defendant was in financial difficulties and being faced with medical fees to pay for his son decided to commit the robbery.  I accept the defendant is remorseful for what he has done and that he did not intend to hurt any of his victims.  I also take into account that the defendant has not been before the court for almost 17 years.  One cannot however overlook that the defendant’s previous conviction is also for robbery, for which he was sentenced to training centre.

7.  In R v MO Kwong-sang [1981] HKLR 610 the Court of Appeal laid down guidelines for armed robberies.  The appropriate sentence in an ordinary case of armed robbery where the accused carried a knife or other dangerous weapon, which he displays to his victim, should be five years imprisonment.

8.  The weapon used by the defendant has been called a folding saw.  In HKSAR v AU Chi-hang & others [2006] 2 HKLRD 310 the court considered whether iron and wooden rods were dangerous weapons and thus fell within the guidelines for armed robberies laid down in R v MO Kwong-sang.  The Court of Appeal held that dangerous weapons should mean objects, which could be compared to a knife in terms of capability of inflicting immediate death or serious injuries in the course of robbery, so that faced with such an object, the victim could only choose between succumbing to the robber or sustaining serious injury.  The emphasis is on the degree of fear to which the object could make the victim subject.  Factors affecting the degree of fear include the nature (including the size and weight) of the object and the circumstances of the offence.

9.  Having had the opportunity of looking at photographs of the folding saw, to anyone confronted with a robbery this would have all the appearances of a knife.  I am satisfied this is clearly a dangerous weapon which could have caused serious injury.  Indeed Mr Vidler concedes the folding saw is a dangerous weapon. 

10.  The starting point of five years is to be increased where the robbery involves invasion of private premises, which includes business premises and physical violence is used, including the tying up of victims.  The Court of Appeal R v MO Kwong-sang suggested in such circumstances a sentence of seven years imprisonment should be considered.

11.  Whilst Madam Lam fortunately received only minor injuries the folding saw was pointed at her and she was tied up, albeit not very well resulting in her being able to free herself almost immediately and thus prevent the robbery.  The bravery of Madam Lam and Madam Leung, being confronted with a man yielding a folding saw, is to be commended.  In all the circumstances I am satisfied the proper starting point after trial is one of six years imprisonment

12.  Giving the defendant full credit for his plea of guilty he is sentenced to four years imprisonment.