HKSAR v. LAW LIT CHOI

DCCC 626/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 626 OF 2014

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Reasons for Sentence

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1. The defendant has been convicted of one offence of robbery and, on his own plea, been convicted of two offences of assault occasioning actual bodily harm. All the offences were committed in the evening of 9 June 2014.

2. The first offence, to which the defendant has pleaded not guilty and been convicted after trial, is the robbery.  I do not propose to rehearse all the facts again outlined in my judgment earlier, but the defendant had approached the victim and his friend, who were outside the 7-Eleven Convenience Store nearby where they all lived.

3. The defendant had apparently needed $100 in order to go and pay for a taxi to see his mother, and it is apparent that he assaulted the victim to get him to give the $100 away.  It is also quite clear the defendant had drunk extensively that evening prior to doing this.

4. He had then gone on to commit the next two charges later that evening.  He had asked one of the victims for a cigarette but had been refused, then he used his left hand to assault the face of the victim.  He had been chased by the victim, who he grabbed hold of and pushed to the ground and hit his chest.  The next victim tried to separate them and had been pushed to the ground as well.

5. The defendant was eventually arrested.  He said he had consumed alcohol.  In relation to the robbery, he said he had borrowed the money.  He did not deny that he had committed the assaults on the victim.

6. It was apparent from the facts outlined at the trial that the defendant’s rampage was fuelled by alcohol, and in respect of sentencing, both a psychiatric and a background report were obtained.  The psychiatric report reached the conclusion the defendant has a problem of alcohol dependence, but no active psychiatric symptoms, so in-patient treatment is not needed.  He has received outpatient treatment for this problem.  As to the severity of his complaint, it would seem that in 2008 he developed delirium tremens, which is a severe complication of alcohol withdrawal.  The psychiatric report shows he has repeated brushes with the law and is estranged from his relatives, all attributable to his alcohol problem.  This problem has led to him being known to the psychiatric services since 2003 with alcohol dependence.  He has been admitted to a psychiatric hospital a few times during states of intoxication and poured thinner onto himself as suicidal threats.

7. The background report shows that the defendant is 43 years old.  He was a street sleeper from 2012 to 2014.  He was given public housing at Sau Mau Ping as what is described as “compassionate rehousing” in June 2014.  This was clearly unsuccessful, because he went out that evening, having drunk extensively, and committed these three offences.

8. The conclusion of the background report is well evidenced.  It says he is addicted to alcohol.  He has been repeatedly sentenced to fines and imprisonment.  He is weak at self‑control and he claims to be under alcoholic influence.  It is also clear that he is estranged from his family as well.  He has an unstable vocational record.

9. The defendant’s criminal record was admitted. He has 10 previous appearances in court, mainly for minor offences of violence. He first went to prison in 2008 for indecent assault and common assault.  In 2011, in respect of three offences, he was sentenced to a total of 1 year’s imprisonment.  These were wounding and assault offences.  Finally, in 2012, for an offence of loitering, he was sentenced to a suspended sentence of 2 months’ imprisonment, suspended for 2 years.  That was imposed on 17 September 2012, so the defendant appears in breach, although it is the very end of that period of suspension.

10. One has to make an attempt to categorise offences of this nature.  The defendant has a problem with drink and he has a problem with aggression when he is drunk.  As I said in my judgment, he is disinhibited, and that appears to be what happens to him, and he is violent.  I also characterise the first offence as a bullying kind of offence.  He is full of drink and he goes out and picks on people.  In this case it was PW1, who we know is a bit challenged, and his friend, an older man.

11. What can be said is the defendant only took $100, which is what he needed.  There was no evidence that any of the assaults caused any long-term problem.  He then goes off and tries to beg cigarettes from the other victim, and when he is refused, gets into a fight.

12. The defendant is an anti-social drunk.  How to sentence such a person?  The defendant is convicted of robbery in the first offence, which is a serious offence, but the facts of robbery can vary considerably.  The most serious forms of robbery, where substantial amounts of violence are used, lead to a sentence of up to 4 years’ imprisonment for a first offender with a clear record.  I do not believe this robbery can fall into the category of most serious.

13. These are offences that warrant a sentence of imprisonment, because the defendant clearly has not desisted from his drunken rampages as a result of previous sentences of imprisonment.  But one must also maintain a sense of proportion as to what actually happened that evening.

14. I consider that the following sentences will sufficiently punish the defendant and also act as some restraint on his future behaviour.

15. On the 1st charge of robbery, I will impose a sentence of 2 years’ imprisonment.  On the 2nd and 3rd charges of assault occasioning actual bodily harm, I will take a starting point of 6 months’ imprisonment.  I will reduce those to 4 months’ imprisonment for the defendant’s plea of guilty.  This is one complete act over a period of time.  I am going to order, having regard to totality, that all the sentences run concurrently.

16. As far as the suspended sentence is concerned, we are at the end of the period of suspension, and it is for a dissimilar offence.  I will not activate the suspended sentence.

17. So the overall sentence for these offences will be one of 2 years’ imprisonment.