CRIMINAL CASE NO. 408 OF 2010
COURT: The defendant has pleaded to seven counts of the indictment, which includes two counts of burglary, one count of arson, a count of robbery, two counts of criminal damage and finally another count of robbery.
The facts show that on Count 1, he had prised open a cash register of a fashion shop, at the Yue Man Centre, in Ngau Tau Kok Road, Kowloon, and had stolen a total of $1,700. His fingerprint was found from the drawers underneath the cash register.
In the 2nd count, which is one of burglary, the defendant had, between 21 November 2009 and 22 November 2009, gone into a bread shop and stolen cash of $1,250.
In the 4th and 5th charges, which is arson and robbery, on 24 January 2010, in the early hours of the morning, the victim, a Mr Yeung, was on duty at the shroff office at the Imperial Parking Car Park, at Sheung Foo Street, Ho Man Tin Estate. The defendant approached Mr Yeung and said that there was a fire. Mr Yeung went to investigate and saw a motorcycle which was on fire. He went to the shroff office to fetch a fire extinguisher and at that time he noticed the defendant had entered the shroff office.
Mr Yeung shouted at the defendant. They had a struggle and Mr Yeung was pushed to the ground and the defendant fled with $1,600 cash. The damage to the motorcycle was that the motorcycle cover was burnt and there were minor burn marks on the motorcycle. The cost of repair was about $1,500.
In relation to Count 7, which is a criminal damage charge, Mr Yeung was on duty at the same car park on 7 March 2010, also in the early hours. The defendant again approached Mr Yeung and alleged that a motorcycle was on fire. When Mr Yeung ignored him, the defendant then asked Mr Yeung to open the door. When Mr Yeung refused, the defendant kicked the door and used a stapler to hit the glass window of the door. The window was smashed and the defendant threw the stapler into the office and the fragments of the glass window injured Mr Yeung on the forehead. Mr Yeung’s glasses were also broken. The defendant then fled. The cost for the replacement of the glass window and Mr Yeung’s glasses was a total of $800.
Now, in relation to Charge 8, which is another criminal damage charge, at 8 o'clock in the morning, on 3 April 2010, the defendant had smashed the glass window of a fashion shop in Yue Man Shopping Centre. This was the same shop which was the sence of Charge 1. He was seen by a member of the public, Mr Au and the defendant fled. Mr Au, subsequently identified the defendant at an identification parade. The cost of repair was $2,000.
Finally, Charge 9 is a robbery. On 4 April 2010, the defendant went into the same car park as in the previous charges, and approached Mr Yeung who was on duty at about 6.30 in the early hours of the morning. The defendant was carrying a display stand and a bag at the time. Mr Yeung recognised the defendant and was about to call the police when the defendant shouted at him not to call the police.
The defendant used the stand to break the window of the shroff office and attacked Mr Yeung with the stand. Apart from that, the defendant also pulled Mr Yeung’s hair and stabbed at his head. Mr Yeung finally managed to escape and whilst Mr Yeung was running away he noticed the defendant had entered the shroff office. After the defendant left, Mr Yeung discovered that cash of $80 was missing. Mr Yeung was subsequently sent to Queen Elizabeth Hospital and he had the following injuries: he had tenderness on the head, face and right little finger, bruising and swelling on the face, laceration of the right middle finger and head and fracture on the right middle finger.
The defendant had left behind his personal belongings in the bag he was carrying at the scene. Subsequently, the defendant was intercepted and arrested. He was interviewed and in the various interviews conducted with him, he had claimed that he had committed some of the offences whilst under the influence of “ice” so he had vague recollection of the events.
The defendant is aged 38 and he has a poor record. He has some nine counts of previous convictions for burglary and two previous convictions for theft. He had also been convicted of drug offences. Ms Tai, mitigating on his behalf, put forward the fact that he was abused when he was a young boy. This at the defendant’s age of 38 is no longer a good excuse. Many people in Hong Kong have come from poor families, some from families where parents have no time to look after them properly but yet have managed to make something of themselves.
Defendant, at the age of 38, can no longer hang the reason for committing criminal offences on his childhood past. I see from his previous record he has been given many chances in the early days when he started committing offences. He had been sent to a drug-addiction treatment centre twice already.
Because these offences, particularly the last offence, had included some unnecessary violence committed on the victim, I was concerned whether to call a psychiatric report on the defendant before sentencing. It transpired that, at the time when the case was called in the Magistrates' Court, the learned magistrate had indeed called for two psychiatric reports on the defendant.
The two doctors were of the opinion that the defendant did not suffer from any psychiatric disorder and did not require any psychiatric treatment. According to one psychiatrist he has what is called an antisocial personality disorder. He had disclosed to the doctors that his drug use tended to lead him to commit these offences.
Whilst it is true that the defendant did not bring any weapons with him when he committed the robbery in the form of any sort of lethal weapons, thus that is some mitigation. But I cannot accept that there was no premeditation because in the 5th count of robbery he had set fire to a motorcycle cover in order to distract the shroff, Mr Yeung, in order to rob the shroff office. On that occasion when he succeeded he then tried to use the same distraction in the 9th count of robbery, but this time Mr Yeung did not fall for his ruse and that is when he got violent. The injuries on Mr Yeung were not minor because he suffered a fracture of his finger.
So in considering sentence I have taken into account all the facts of the various charges and also the mitigation advanced by Ms Tai. The only mitigation I can see is the fact that he had pleaded guilty.
Now, considering each charge first, in relation to the burglary charges the maximum appropriate starting point has always been 2½ years for burglary of business premises. The defendant has had nine previous convictions of burglary so I am going to adopt a higher starting point. For each burglary, for Counts 1 and 2, I adopt a starting point of 3 years but reduced to 2 years because of his plea.
For Counts 4 and 5, for the arson I adopt a starting point of 6 years reduced to 4 because of his plea.
The robbery, because the violence was minimal, the defendant did not bring any lethal weapons with him, I consider a starting point of 4 years to be appropriate, reduced to 32 months because of his plea.
For the 7th count of criminal damage, I consider a starting point of 15 months to be appropriate, reduced to 10 months because of his plea.
For the 8th count of criminal damage, I consider a starting point of 12 months to be appropriate, reduced to 8 months because of his plea.
For the 9th count of robbery, there was, as I have said, unnecessary violence on Mr Yeung leading to a fracture of his finger and head injury, so I consider that an appropriate starting point would be one of 5 years reduced to 40 months because of his plea.
Now I have to consider the totality principle. So as a first step to that I will make the sentence in Count 2, 6 months of the 2 years will be consecutive to Count 1. So as a result, Counts 1 and 2 will result in 2½ years’ imprisonment. Then I will consider Counts 4 and 5. Count 4 will remain as 4 years and Count 5, 2 years and 8 months will be served consecutive to the 4 years in Count 4 -- I mean, not consecutive, concurrent -- I’m sorry, no. The 4 years in Count 5 will be served concurrently -- the 2 years 8 months in Count 5 will be -- I’m sorry, I have made a mistake.
As I said, Count 4 will be 6 years reduced to 4 years, and in Count 5 the 4 years for robbery will be reduced to 32 months, and that 32 months will be served concurrently with the 4 years in Count 4. So the sentence for Counts 4 and 5 will be 4 years.
Now, in relation to Counts 7 and 8, the criminal damage counts, for Count 7 it will be, as I said, 15 months reduced to 10 months. The 8th count will be 12 months reduced to 8 months and that 8 months will be served concurrently to the 10 months in Count 7. Count 9 remains by itself as 5 years reduced to 40 months.
Finally, in regard to the totality sentence, I have worked it out in the following way: as I have said, Counts 1 and 2 will be 2½ years. Counts 4 and 5, 4 years’ imprisonment. 2 years of that will be consecutive to Counts 1 and 2 and 2 years concurrent.
In relation to Counts 7 and 8, which has a total sentence of 10 months, 4 months of that will be consecutive to Counts 1, 2, 4 and 5 and the remainder 6 months concurrent.
Finally, the 40 months’ imprisonment for Count 9, 18 months of that will be served consecutively to Counts 1, 2, 4, 5, 7 and 8 and the rest concurrent, making a total of 76 months’ imprisonment, which is 6 years and 4 months.