HKSAR v. LEE CHI KEUNG

DCCC 1001/2021

[2022] HKDC 1507

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1001 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea and agreement to the Summary of Facts to a charge of robbery, contrary to section 10 of the Theft Ordinance, Cap 210.

Facts

2.  At around 2220 hours on 21 August 2021, Ms Choi (PW1), aged 25, walked home from work.  When she reached the tenement house where she lived in, ie Kweilin Mansion, 30-32 Kweilin Street, Sham Shui Po, Kowloon, she opened the main gate with a key.  Having entered the building, PW1 heard the defendant shaking the gate from outside.  Thinking that the defendant was also a resident, she opened the gate for the defendant.

3.  Afterwards, the defendant walked in front of PW1 and they both took the stairs.  When the defendant reached the staircase between the 1^st and the 2^nd floor, he suddenly turned around with a syringe (with needle)  held in his left hand.  The defendant pointed the syringe at PW1 and demanded her (in Mandarin)  to surrender her mobile phone or he would hurt her. Before PW1 could react, the defendant snatched PW1’s mobile phone (worth $7,000)  from her right hand and fled.  PW1 was not injured and the case was reported.

4.  On 24 August 2021, PC10110 spotted the defendant who resembled the male in the CCTV footages.  He intercepted the defendant and conducted enquiries with him.  Later that day, he arrested the defendant.  Under caution, the defendant stated that he robbed PW1’s phone because he needed the money.

5.  A cautioned video-recorded interview was taken with the defendant.  Under caution, inter alia, the defendant stated that he followed PW1 into a building, and out of greed, he pointed a syringe at PW1 and snatched her mobile phone.  He picked up the syringe on the ground from somewhere.  He intended to use it to scare PW1.  He had not used the syringe and had thrown it away.

Criminal Record

6.  The defendant has 3 previous convictions of burglary in 2021 for which he was sentenced to 2 years and 10 months’ imprisonment.  He was last discharged from prison on 11 June 2021.

Mitigation

7.  The defendant was born in Mainland China.  He is now aged 40.  He came to Hong Kong in 1994 and was educated up to Form 2.  He is single.  His parents passed away and he lived with his elder sister who is a housewife.

8.  According to the medical report dated 28 June 2022, the defendant was diagnosed with hepatocellular carcinoma and is presently treated in Queen Mary Hospital hepatobiliary team.

9.  It was said by defence counsel that the defendant used to be a construction site worker earning $700 per day, with an average monthly earnings of about $14,000.  However, due to COVID and his own personal physical problem arising from the liver ailment, no contractors are willing to hire him and he was still out of a job a month after his release from prison.  He was therefore in financial difficulty and has foolishly committed the present offence.

10.  Defence counsel submitted that, as said in the Agreed Facts, he used a syringe to point at the victim and demanded her to surrender her mobile phone or he would hurt her, and that before the victim could react, he snatched her mobile phone from her right hand and fled.

11.  Defence counsel submitted that the syringe could not properly be considered as “other dangerous weapon” within the meaning of the case of Mo Kwong Sang v R [1981] HKLR 610, and therefore he doubted whether it was proper to categorise the present case as “armed robbery”. 

12.  He submitted that in the case of HKSAR v Andrianiaina [2017] 2 HKLRD 500, it was held that by reason of the way in which the screwdriver was used in the robbery, it was rightly regarded by the judge as a dangerous weapon.  In holding that the screwdriver to be a dangerous weapon, the Court of Appeal took account of its length, which is 21 cm, and the conduct of the defendant using it in the hotel.  The court also endorsed the view of the judge that, in answer to defence counsel’s submission that a screwdriver was not a dangerous weapon in the ordinary sense, “it depends on how it is used”.  The court in that case held that in all the circumstances of the case, the screwdriver fell to be regarded as a dangerous weapon. 

13.  Defence counsel submitted that the syringe in question appears to be an ordinary one.  The way the defendant used it was not obviously or particularly dangerous.  He pointed it to the victim and, in fact before she could react, he snatched her mobile phone from her hand. There was no further use of the syringe.  It was said that the victim did not appear to suffer great harm or any injury.  It was said that the defendant had no intention of hurting the victim.  There was no actual use of force or even bodily contact, save and except the snatching act, and the defendant acted alone.

14.  Defence counsel submitted that in all the circumstances of the case, the syringe cannot properly be regarded as a “knife or other dangerous weapon”.  He submitted that the present case should be one that is a step further or a bit more serious than the snatching-type cases.

15.  He further submitted that for unarmed robbery, the starting point should be lower than the normal sentence for an armed robbery of the kind envisaged in Mo Kwong Sang. 

16.  Defence counsel submitted that the defendant indicated his intention to plead guilty at the earliest stage and the same showed his remorse, he is therefore entitled to full one-third sentencing discount. 

17.  He also conceded that in general, ill health will not constitute a mitigating factor for serious offences, but he urged the court, in view of the defendant’s liver problem, would give the defendant further sentencing discount as an act of mercy.

18.  In response to the cases cited by the prosecution, defence counsel submitted that the case of HKSAR v Mok Ka Wing, HCCC 36/2019, is not useful in sentencing of the present case as the same involved the use of a knife and the venue of the robbery is a one-woman brothel.  

19.  He further submitted that the case of HKSAR v Zhang Wei [2014] 6 HKC 599, was another one-woman-brothel case where the defendant used a syringe with what appeared to contain blood, and he did inform the victim that he had AIDS and he also stabbed the victim with the syringe.  The Court of Appeal ruled on appeal that the sentencing starting point should be 9 years’ imprisonment.

20.  Defence counsel said the Zhang Wei case was more serious than the present one.  He also said that the circumstances under which the syringe was used fitted the requirement of other dangerous weapon mentioned in the Andrianiaina case.

21.  Defence counsel submitted whether the syringe constituted “other dangerous weapon” depends on its nature, how it is used, and it is a question of fact after considering all circumstances. 

22.  Defence counsel further submitted that the case of HKSAR v Zhou Zexin, DCCC 789/2015, where the defendant displayed a cutter and a syringe with blood-like substance, and declaring to the victim that he had AIDS, the court followed Mo Kwong Sang guideline.  It was said that in that case, there was a cutter displayed, which is absent in our case, and the defendant here did not say that he had AIDS.

23.  Defence counsel also lodged with the court the mitigation letter from the defendant for consideration.

Discussion

24.  Before sentencing, this court has considered the mitigation submissions by defence counsel and the authorities cited as well as the mitigation letter from the defendant. 

25.  A person convicted of this offence upon indictment is liable to imprisonment for life.

26.  In the case of Mo Kwong Sang, the Court of Appeal in the authority said that:

“In the case of robbery where a knife or other dangerous weapons are displayed to the victim, the appropriate sentence shall be 5 years’ imprisonment. The sentence shall be increased if there are aggravating factors such as invasion of domestic premises during the night, the presence of more than one perpetrator, threats to the victim, ill-treatment of elderly people and children, or a multiplicity of offences of a similar kind. The fact that the offender had a previous clear record should be given little account.”

27.  Defence counsel urged this court not to consider the syringe used by the defendant in the present case as falling within the category of “other dangerous weapons” referred to in the Mo Kwong Sang case. 

28.  The defendant in present case pointed a syringe at a lone lady, PW1, and demanded her to surrender her mobile phone or he would hurt her whilst they were alone on the staircase of an old residential building in Sham Shui Po late at night. 

29.  No doubt, in the mind of the defendant, the use of the syringe presented a real threat to the victim as the same was coupled with the threatening words that he would hurt her.  He admitted in the video-recorded interview that he used the syringe to threaten the victim and that he had previously picked up the syringe from the street.  Obviously, the same looked used and contaminated. The threat of using it would instill fear on the victim.

30.  In the case of Zhang Wei, the Court of Appeal acknowledged that the mere threat of the use of a syringe in the course of robbery undoubtedly instilled terror in any victim, and its actual use would cause terror and foreboding at the possible consequences.

31.  There is no doubt, as said earlier, that the defendant had intended to instill fear in the victim, using the syringe.  It matters not whether the victim did notice or was there blood or other material inside the syringe.

32.  In the case of Andrianiaina, Lunn VP said that implied threat of the use of force was clear.  Obviously, in all circumstances, the screwdriver fell to be regarded as a dangerous weapon.  He confirmed the sentencing starting point of 5 years’ imprisonment for the robbery charge.  He also agreed to the view of the trial judge that whether the screwdriver constituted a dangerous weapon could depend on how the screwdriver was used.

33.  This court has no doubt that the use of the syringe in the circumstances of the present case makes the syringe “a dangerous weapon” referred to in the Mo Kwong Sang case.  The use of discarded syringe would definitely pose serious health risks and threat to any victim.

34.  Following the guideline in the Mo Kwong Sang case, the appropriate sentencing starting point in the present case is one of 5 years’ imprisonment.  It is lucky for all parties concerned that the defendant got the mobile phone from the victim and did not stab her with the syringe.

35.  Armed robbery is a very serious offence, and personal circumstances is seldom a valid mitigating factor.  Committing the crime because of financial gain is obviously not a valid mitigating factor.

36.  Considering the mitigation submissions of defence counsel, the court notes that the most valid mitigating ground is the defendant’s own guilty plea, for which he is entitled to full one-third sentencing discount.

37.  The defendant committed this offence just 2 months and 10 days after his release from prison for burglary charges, which like the present robbery charge, are theft-related.  This is, however, the first robbery charge of the defendant.  On this occasion, the court is not going to enhance the sentencing starting point.

38.  The court notes that the defendant is now suffering from hepatocellular carcinoma which is a serious ailment.  This court is not informed of the actual prognosis.  However, for the benefit of the defendant and as urged by defence counsel as an act of mercy, this court is willing to discount the sentence by 8 months.

39.  The defendant is therefore sentenced to 32 months’ imprisonment for this charge.