HKSAR v. FUNG HING NAM, MICKEY

DCCC 651/2021

[2021] HKDC 1405

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 651 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of attempted robbery contrary to section 10(1)(a)  of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200.

Summary of facts

2.  At 1:45 pm on 4 May 2021, PW1 withdrawn cash of HK$800 from an ATM machine and put the cash inside her wallet.

3.  When she walked out of the banking centre, she felt a hand on her left shoulder and a hard object stuck into her left waist.  She turned around and saw the hard object was a fruit knife with a blade of 10 cm-long with a knife cover.  The defendant asked her to give her money.

4.  PW1 pushed the defendant away and shouted she was being robbed.  The defendant removed the cover of the knife and said that they could call the Police as she did not wish to live anymore.  The defendant then walked away.

5.  The incident was captured by CCTV.

6.  At 11:35 pm on 5 May 2021, the defendant was arrested for “Attempted Robbery”.  The fruit knife was found during a house search.

7.  The defendant further admitted under caution that she had spotted PW1 walking out of the banking centre with HK$200 in her hand.  She decided to scare PW1 with the knife to see if PW1 would give her HK$100.

Criminal record

8.  The defendant has 3 criminal convictions:-

(a)  Gambling in a gambling establishment in 1995

(b)  Assaulting a police officer in 1997

(c)  Criminal damage in 2002

Mitigation

9.  The defendant is 44 years old.  She is single and living alone in a cubicle.  She received CSSA of $7,300 of which it also included her disability allowance.

10.  The defendant had a stroke many years ago and lost all her teeth.  She suffers from strabismus and a brain haemorrhage.  She was admitted into hospital in January 2021 and was hospitalized for 4 months.  She spent all her saving as a result of the treatment.  She committed the present offence because she was hungry.  She said that she did not want to live when she was caught.

11.  In mitigation, the defence said that:-

(a)  Frank admission to the police as she was not caught red-handed.

(b)  The general demeanour and the tone of utterance suggested a minimal amount of menace and violence being intended.

(c)  She acted alone.

(d)  It was not a sophisticated type of robbery.

(e)  At one point, it was the defence’s mitigation that the defendant did not remove the cover of the knife, it was dropped by itself. After taking legal advice, the defendant withdrew this point of mitigation.

12.  Today, I am also supplied with a mitigating letter from a social worker Miss Lee from the Christian Concern for The Homeless Association.  Miss Lee has been taking care of the defendant’s case since October 2020.  She had paid visits to the defendant twice during this period of remanded.  The defendant told her that she is more remorseful and will reestablish herself after she discharge from the prison.

13.  The defence asked for psychiatric and medical reports before sentencing.

Sentence

14.  The three reports are now before me and they told me that the defendant used to be chronic heavy drinker since her 20s.  She is suffering from Wernicke’s Encephalopathy, but she is now in total abstinence in recent years.  She is now in stable mood and not showing any signs of mental disturbances.

15.  As to the medical report, she did not suffer from any stroke, but “appeared more related to encephalopathy (brain disease)  associated with alcoholic delirium and brain damage.”  She also has lazy eye syndrome.  Her eye vision has gradually diminished to the point that she could barely count her fingers at near vision.

16.  In conclusion, the defendant did not suffer any mental illness.

17.  For robbery with arms, the leading authority is Mo Kwong Sang, CACC 359/1981, a starting point of 5 years.

18.  I take into account of the mitigating factors put forward by the defence and the fact that the defendant was driven to commit the present offence purely due to poverty and hunger, the victim did not suffer any loss and injury, the weapon being displaced was a fruit knife with a blade of 10 cm long, the defendant did not have similar criminal record, I considered that a starting point of 4 1/2 years is appropriate, I reduce to 3 years after 1/3 discount.

19.  In view of the fact that the defendant is now suffering from certain degree of brain damage, I further reduce 3 months on a compassionate ground.  The defendant is now to serve a period of 2 years and 9 months.

Order

20.  The defendant is to serve a period of 2 years and 9 months.