HKSAR v. LAM CHUN FUNG, MICHAEL AND OTHERS

HCCC 13/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 13 OF 2013

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: These two defendants pleaded guilty on 25 October 2013, having first indicated that they would be entering such a plea very shortly before the trial. This explains the long delay before this case could be listed as room had to be found in the list for an eight-day trial. If the defendants had indicated that they wished to plead guilty, their cases would have been disposed of probably last year because they were arrested in April 2012.

As a second general observation, Mr Polson has indicated that this case was committed to the High Court under the classification of “a head-bashing case”. Such cases, of course, come under the guidelines for sentencing and indicate an 8-year starting point. In reality, this case is no such type. This was a thoroughly unpleasant street mugging where the victim, it is true to say, was hit on the head, but by a very small lightweight torch which caused a small injury to his head.

In The Secretary for Justice v Ma Ping Wah as reported at [2000] 2 HKLRD at page 312, reading at page 320, the Court of Appeal said this:

“It seems to us a matter of the most straightforward commonsense that where a robber deliberately sets about his victim by striking a blow or, as in this case, blows to the victim’s head with a weapon which is capable of causing brain injury, this will be an aggravating factor. It is a particularly dangerous act.”

Unfortunately, the person dealing with the papers in this case in the Department of Justice and who takes responsibility for the committal of this case to the High Court paid insufficient attention to the details of the case and assumed, merely because the victim was hit on the head, that this was a case deserving, in principle, of an 8-year starting point. It is plainly apparent that this is not such a case.

In short, the victim, who worked as a chef and was walking home at 2 o'clock in the morning from his work was assaulted in the section of Nathan Road in Yau Ma Tei by Lam Chun-fung, who is the 1st defendant, with a torch blow to the head. Meanwhile, Wong Ka-yu, the 3rd defendant, and Nguyen Nam-duy, the 2nd defendant, who has absconded while on bail and for whom a warrant of arrest has been issued, went up to the victim on either side. The 1st defendant then searched the victim’s pockets.

However, all the while, an observant police team, headed by Sergeant Wong Hei-lam, whose suspicions had been aroused by the defendants’ behaviour, had kept a watch on the three defendants. The 1st defendant was immediately arrested after a struggle and the other two participants in this attempted robbery were arrested the next day.

I requested Training Centre reports on the 1st and 3rd defendants when they appeared for sentence on 29 October, as they are aged 17 and 19 respectively. The reports are now before me. In both cases, the sound reasons expressed in them amount to an expression of the view that a period of training, and in the 1st defendant’s case, another period of training, is considered to be the most beneficial means of dealing with the case so that they may develop a greater insight into their own problems of juvenile delinquency and to strengthen their desire to become law-abiding once more.

It is quite apparent to me that it is in the interests of the community as a whole that training at a training centre is expedient for the prevention of crime as well as the rehabilitation of the offender. I am aware, of course, that in the 1st defendant’s case, he is presently undergoing training for an offence for which he was on bail when he committed this attempted robbery. I am also aware that the 3rd defendant is awaiting trial for an offence for which the sentence may be considerably longer than a training centre for all I know. Nevertheless, I can only deal with this case on the facts as they are presented at this time.

Would you stand, please. It is quite plain that a custodial sentence for an offence of this kind is inevitable. In view of your ages and your pleas of guilty and your background, in my view, the only proper course on the facts presented to me in these proceedings is to order each of you to undergo a period of training at a training centre. So the sentence of each of you is that you will undergo a period of training at a training centre.

Lam Chun-fung, in your case, you are presently undergoing training and so this is a fresh order.

In your case, Wong Ka-yu, the sentence is not intended to give any indication as to the sentence you may receive if you were convicted of trafficking in ketamine. All that I know about that case is that it is still outstanding and that your trial will be in the future. I shall order that a transcript of my sentencing remarks is made available for the trial judge in that trafficking case.

It is also important that when the 2nd defendant is arrested, the case is brought back before me if it is at all possible. It is well-established that it is most undesirable, where it can be avoided, to have different judges dealing with different defendants in the same case because that can lead to disparity of sentencing.

I have dealt with the 1st defendant and the 3rd defendant now because they have waited long enough already to have their cases disposed of and there is no saying how long it will be before the 2nd defendant is arrested.