HKSAR v. LAM HOI

HCCC 63/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 63 OF 2016

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: The defendant has been convicted on his own plea of three charges of robbery. The guilty pleas were entered at the Eastern Magistrates’ Court on 29 January 2016.

The Summary of Facts which has been admitted by the defendant provides, inter alia, that the offence, the subject matter of Charge 1, occurred at around 2330 hours on 23 July 2015 at the 7-Eleven convenience store at Shop 22, Ground Floor, Regentville Shopping Mall, 8 Wo Mun Street, Fanling.

A Chinese male, Chan Kwok-lun (PW1), was on nightshift duty at the store. At around 2330 hours whilst PW1 was at the checkout counter, the defendant entered the store. The defendant wore a face mask and walked towards the refrigerator and took out a can of beer. He loitered around inside the store for a while. He then went to the checkout counter and presented the can the beer to PW1 to process payment.

The defendant then suddenly produced a knife which was about 8 inches long and he pointed it at PW1’s stomach. The knife was about 15 centimetres away from PW1. The defendant announced in Cantonese “Robbery. Quick, take all the money out”. As PW1 feared for his safety, he opened the cash register and was then ordered to put all the money inside a recycle bag which the defendant had brought with him when he entered the store. After placing money inside the recycle bag the defendant fled the scene.

PW1 later discovered that the sum of $1,340 had been taken away by the defendant in addition to the can of beer worth $14.50.

The offence, the subject matter of Charge 2, occurred at 0345 hours on 24 July 2015 at the 7-Eleven convenient store at Ground Floor, Louver Mansion, 9-11 Luen On Street, Fanling. A Chinese male, So Ka-lok (PW2), and a Chinese female, Mah Nga-yuk (PW3), were on nightshift duty at the store.

The defendant entered the store and wore a face mask. After a while, he proceeded to the checkout counter where he handed over a bottle of Pocari water and a box of Ricola Mixed Berry throat drops.

After PW2 scanned the bottle of water and informed the defendant the amount he had to pay, the defendant suddenly produced a knife about 8 inches long from his recycle bag brought by him when he entered the store and pointed the knife at PW2’s head. PW2 noticed the knife was very near to him. The defendant announce in Cantonese “Robbery” and “Open the cabinet”. PW2 told the defendant he did not know how to open the cabinet. The defendant then replied he had robbed nearby and went on to say, “Don’t you believe that I will stab you?” PW2 was very afraid at the time.

PW3 was at the storehouse area of the store and was alerted of the incident by PW2. She called the police hotline to report the incident. She then went out of the storehouse area and shouted at the defendant, “What are you doing. I have called the police.”

The defendant left the store momentarily and returned. He said to PW2, “Pick up the bag for me.” PW2 picked up the recycle bag and gave it to the defendant who then left the scene.

PW2 discovered that the only loss sustained was a box of Ricola Mixed Berry throat drops valued at $6.50.

The offence, the subject matter of Charge 3, occurred at around 1824 hours on 25 July 2015 at the 7-Eleven convenient store at Ground Floor, Wing Hay Court, 9 Wo Fung Street, Fanling. At the material time, a Chinese female, Lau Sze-lam (PW4), was on duty behind the checkout desk. Another staff member was working at the frozen foods storage section.

The defendant entered the store wearing a face mask. He looked at some Coltalin medicine on the shelf before walking around the store. He took one cuddly “Chopper” doll with gumdrops (valued $49.90), a bottle of Bonaqua mineral water valued at $7.50, a roll of grape favoured gumdrops valued at $11.90 and one packet of Marlboro cigarettes valued at $55 and handed these items to PW4.

PW4 scanned the items and the total came to $124.30. The defendant then produced a knife about 12 inches long with a black handle and declared robbery. He ordered PW4 to take out all the money. PW4 was frightened and took out all the money from the cash register and placed the same inside a recycle bag which the defendant had brought with him to the store. He then left the scene.

After the incident, PW4 checked and discovered that the cash amount taken away by the defendant was $6,760. The total loss suffered was $6,884.30.

Reports of the three robbery incidents were duly made to the police. The CCTV system at the three locations captured the incidents. All three showed images of the defendant wearing a mask.

The defendant left Hong Kong at 1919 hours on 25 July 2015. He was arrested for his involvement in the first robbery in the afternoon of 3 August 2015 when he returned to Hong Kong via the Lo Wu Control Point.

In a later video-recorded interview, the defendant confirmed his admissions to all three robbery offences. He was shown the exhibits seized by the police and the photographs of the two knives. He said one knife had been taken from his home and used in the first and second robbery whilst a second knife was used in the third robbery. The second knife was purchased at a pharmacy. The cash amounts stolen in this case were not recovered.

By way of personal background, the defendant is 19 years of age. He was 18 at the time of his arrest. He was born in China in September 1996. He came to Hong Kong in 2009. He has received education up to Form 4 level in Hong Kong. After he left school he worked as a trainee cook in April 2014 and he worked as a truck attendant from February 2015 to June 2015.

The defendant is single. He lived with his younger brother in a public housing estate. His stepfather, mother and younger sister lived in a unit next to the defendant’s.

The defendant does not have any previous criminal conviction.

In mitigation, Mr Suen Kam-hee submitted on behalf of the defendant that the defendant pleaded guilty at the first opportunity, and has been fully cooperative with the police since. He made confessions to all the offences. He has a clear record.

Mr Suen told me that the defendant committed the offences out of stupidity, that he was tricked by a girl whom he became acquainted on the internet into helping her to pay her arrears in rent in the sum of some $10,000. The money which the defendant obtained from the robberies was indeed transferred to this girl, who has since vanished and the defendant has lost contact with her.

Three mitigation letters from respectively the defendant’s mother, his younger brother and a member of the North District Council were submitted to the court, the contents whereof have been duly noted.

However, as against the defendant’s personal background and circumstances, I have to bear in mind that the offences committed by the defendant are serious offences which call for deterrent sentences, as has been held by the Court of Appeal in cases which I am going to refer to below.

In Mo Kwong Sang v R [1981] HKLR 610, at 611D-G, the Court of Appeal held as follows:

“By the word ‘armed’ in this judgment, we are referring to knives and other dangerous weapons, but not to firearms for which severer sentences are normally imposed.

As this court has said on a number of other occasions, little account can be given to the previously clear record of anyone who takes part in an ‘armed robbery’.

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.

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 . . .

These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims; ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind.”

In each of the offences involved in the present case, the defendant had displayed a knife to his victim, whilst committing robbery in a shop. Further, I regard it as an aggravating factor, that the robberies all took place at convenience stores. As pointed out by the Court of Appeal in HKSAR v Kwok Cheuk Man [2005] 3 HKLRD 698, at paragraph 31, places such as petrol stations and convenience stores that are open round the clock are susceptible to robbery and have to be protected. A deterrent sentence is warranted for those who rob these places.

In the circumstances, for each of the three offences in the present case, I regard the appropriate starting point for sentence should be 6½ years’ imprisonment.

I shall give to the defendant the full one-third discount for his guilty pleas.

On Charge 1, I adopt a starting point of 6½ years’ imprisonment. I give him a one-third discount for his plea. I sentence him to 4 years and 4 months’ imprisonment.

On Charge 2, I adopt a starting point of 6½ years’ imprisonment. I give him a one-third discount for his plea. I sentence him to 4 years and 4 months’ imprisonment.

On Charge 3, I adopt a starting point of 6½ years’ imprisonment. I give him a one-third discount for his plea. I sentence him to 4 years and 4 months’ imprisonment.

Although the three offences were committed within the space of less than 48 hours, they were nevertheless separate offences committed at different times. Consecutive sentences would not be wrong in principle in such circumstances.

However, bearing firmly in mind the totality principle, I am of the view that the proper sentence in this case should be one so as to ensure that the defendant serves a sentence, in all, of 6 years and 4 months’ imprisonment. To achieve that result, I order as follows:

(1) 3 years and 4 months of the sentence on Charge 2 to run concurrently with the sentence on Charge 1, with 1 year to run consecutively;

(2) 3 years and 4 months of the sentence of Charge 3 to run concurrently with the sentences on Charges 1 and 2, with 1 year to run consecutively;

(3) The total sentence which the defendant has to serve is therefore 6 years and 4 months’ imprisonment.