HKSAR v. LAM KA NUNG

DCCC 148/2020

[2020] HKDC 983

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 148 OF 2020

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Reasons for Sentence

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1.  Defendant has pleaded guilty to one count of attempted robbery, contrary to section 10 of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200.

2.  On 4 December 2019, on the 1st Floor of Pik Kwai House, Kwai Chung Estate, New Territories, he attempted to rob a male.  The victim lived on the 1st floor of the material location and about 1 pm on 4 December 2019, he was on his way home.  He entered a lift on the ground floor with another man, the defendant.  When the victim got out of the lift on the 1st floor, the defendant followed him.  The victim turned to look at the defendant and saw his hand inside his jacket pocket with a 12 to 14-inch long screwdriver protruding from that same pocket.  The defendant told the victim it was a robbery. 

3.  The victim ran downstairs to the ground floor via the stairwell and called the police.  The police studied the CCTV footage available and saw that the victim and the defendant entered and exited the lift as described by the victim.  They also saw the defendant then get back into the lift and proceed up to the 11th floor.  He was subsequently identified as a resident living at Room 1120 on the 11th floor of the same building.

4.  The police put Room 1120 under observation and later that same day they saw the defendant leaving the premises wearing the same clothes he wore earlier when he attempted to rob the victim.  The police also found in his left jacket pocket a 33 centimetre long screwdriver with a 21 centimetre long metal silver coloured handle.  The defendant did try and escape from the police but was subdued. 

5.  The defendant admits that he followed the victim out of the lift and said robbery to the victim whilst his hand was inside his jacket pocket with a long screwdriver visible from the same pocket.  He admits he attempted to rob the victim. 

Mitigation

6.  The defendant is now 43 years old and separated from his wife and when arrested was working as a casual cleaning worker earning about $10,000 a month.  His best mitigation is his plea of guilty and he is remorseful.  He wrote to the court a letter expressing his remorse.  It has been submitted that the victim suffered no loss or injury nor was the attempted robbery a sophisticated crime or planned well. 

7.  The defendant is not a man with a clear record. He has 11 previous convictions obtained over seven court appearances.  He has been convicted of trafficking dangerous drugs, gambling, theft, and shoplifting. It appears he has been known to the mental health service and has suffered from drug-induced psychosis in the past. 

8.  In August 2020, two psychiatrists’ report were obtained and he was deemed fit to plea.  At the same time, no compulsory in-patient treatment was advised. 

Reasons for Sentence

9.  In Mo Kwong Sang V R [1981] HKLR 610, the Court of Appeal said:

“We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be 5 years.”

10.  Mr Chiu, for the prosecution, has referred me to that authority, in particular, page 611 at paragraph F where the Court of Appeal went on to say:

“If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases), we suggest that a sentence of 6 years would be appropriate.”

11.  Defence counsel, Mr Hui, submits that although the attempted robbery did take place on the 1st floor corridor outside the life of the victim’s home, private premises, the defendant did not invade that building as he was also living there at the same time. 

12.  The defendant must have known there were CCTV in his own building yet chose to try and rob somebody there.  He was bound to be caught and the facts show it did not take long for the police to find him upstairs.  I will accept the submission that he was not a stranger or trespasser to the building’s common areas. 

13.  Mr Hui accepts that a screwdriver is an offensive weapon.  It can be as threatening as a knife.  In HKSAR v Ng Kai Kwong, CACC 198/1999, the Court of Appeal rejected the submission that a screwdriver was not as offensive a weapon as a knife.  The Court of Appeal there upheld the starting point of 5 years’ imprisonment as suggest by Mo Kwong Sang. 

14.  The defendant here may not have taken it out of his pocket during the course of the attempted robbery but he expressly declared robbery and the victim saw the screwdriver protruding from his pocket.  The defendant had his hand in that same pocket.  I do not differentiate this case from a case where the defendant went on to take it out of his pocket.  Clearly, the screwdriver was visible to reinforce the threat of violence to the victim. It is no less serious and there is no reason to depart from sentencing guidelines. 

15.  I have taken into account the facts of the case and mitigation put forward.  I find the suggested starting point in Mo Kwong Sang of 5 years appropriate to the facts here. 

16.  The defendant pleaded guilty at the earliest opportunity and is entitled to a discount of one-third from that starting point.  Accordingly, after that discount is applied, the defendant is sentenced to 3 years and 4 months’ imprisonment for this offence.