HKSAR v. FUNG CHI FAI

DCCC 270/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 270 OF 2011

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Reasons for Sentence

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Charge and facts

1.  The Defendant pleads guilty to robbery.  At 11:05 a.m. on 21 July 2010, he struck the victim, a female aged 89, on her head at the corridor on the 15^th floor of a public housing block in which she lived.  She felt dizzy and fell down.  Her head hit against the wall.  He took her gold bracelet (valued at $10,000) and fled.  Tenants heard the noise and called the police. 

2.  During the 4 days she had to stay in the hospital, the victim underwent a CT brain scan.  The findings suggested cerebral contusion of a small extent over right frontal region of brain.  She also suffered a 3 cm haematoma over right forehand, abrasions over vertex of head and right upper arm, a minor laceration over lower lip, bruises over both forearms and mouth. 

3.  The CCTV of the building captured the images of the Defendant who entered and left the building at the material time.  He was arrested 7 months later in a street sleeper’s shelter.  Under caution, he admitted that as he had no money to buy meals he intended to rob the elderly.  The victim, who was wearing the bracelet, happened to come by.  He had tailed her for some 90 minutes before robbing her.  Her gold bracelet was good for $5,000.  He had spent all he got.   

Personal background and mitigation

4.  He is 44 years old.  He has received lower secondary education.  He is a casual worker.  He has been in various courts for 33 cases since 25 years ago. His last record is managing a vice establishment.  His criminal records are relating to dangerous drugs, copyrights, and robbery.  To be more specific with robbery, he has the following 12 related records:

(a) Assault occasioning actual bodily harm (1985);

(b) 3 x Theft (1994);

(c) Assault with intent to rob (1994);

(d) 2 x Robbery (1995);

(e) 4 x Theft (2004);

(f) Theft (2005).

Sentencing principles

5.  According to Mo Kwong Sang v R [1981] HKLR 610, the starting point for armed robbery shall start with 5 years in the absence of aggravating factors.  There are no sentencing guidelines for unarmed robbery.  Absent strong aggravating factors, unarmed robberies seldom reach 5 years. 

Sentencing examples

6.  Here are some unarmed robbery sentences in point:

(a) In R v Luang Po Chuen CACC 107/1987, in late evening the victim was pushed onto the ground and struck by the applicant on her head in the communal staircase of the building in which she lived. He then demanded money from her. The Court of Appeal affirmed a sentence of 4½ years imposed after trial.

(b) In R v Yau Kwok Tung [1987] HKLR 782, the applicant and another man approached a man and his wife in the early hours of the morning. They demanded to see their identity cards, which were handed over. They took the man’s paltry cash but flung back the wife’s fake necklace. The wife was very much frightened. Roberts CJ regarded a sentence of 4 years after trial to be high but not manifestly excessive. He said at 783:

“A sentence of four years, in the circumstances of this case, is at the top end of the tariff for robberies where weapons are not displayed. Nevertheless, the offence took place at night, the victims were frightened and we do not regard it is so manifestly excessive that it will be proper for us to interfere with it.”

(c) In R v Oi Ho Pa Yee CACC 480/1993, the applicant, together with his co-accused, both illegal immigrants, entered a house in the New Territories through an unsecured window in the small hours of the morning. Whilst inside, they overpowered a 78-year-old lady, who lived there alone. They seized her, bound her and gagged her. They pushed her into the bedroom. They found her jewelry and took victuals for two or three hours. The Court of Appeal increased the starting point from 4 years to 5 years.

(d) In HKSAR v Ting Chiu and Another [2003] 3 HKLRD 378, the 2 applicants, together with 2 others, robbed a middle-aged couple of hikers in the vicinity of the Lion Rock. Minimal violence was used. The only aggravating factor was the number of robbers. The Court of Appeal revised the starting point from 5 years to 4 years.

(e) In HKSAR v Lam Ka Hung CACC 294/2003, the victim was a middle-aged female. In the evening, she was going home on the third floor of her block when the applicant pressed down her shoulder in an attempt to snatch her handbag. She struggled with him. Both she and the applicant fell to the ground. Her finger sustained a minor abrasion. He eventually took her handbag. The Court of Appeal reduced the starting point from 5 years to 4 years.

(f) In HKSAR v On Ling [2005] 1 HKC 227,in the evening the appellant and his co-accused, both fellow illegal immigrants, were at a quiet bus stop in Tai Po. A 45-year-old male victim arrived and was robbed there by the appellant pointing a rolled-up newspaper at his stomach to declare robbery. The victim was frightened and fell down. They fled with his bag, which was dropped onto the ground. The Court of Appeal revised the starting point of 5 years and said that for an unarmed robbery with a frightened victim, a starting point of 4 years would be appropriate.

(g) In HKSAR v Tsang Wai Man [2007] HKCU 1375, the applicant and another person punched and slapped a boy aged 15 when robbing him and another boy aged 13 outside a park. Six weeks later, another robbery was committed with the 18-year-old victim kicked and punched. The Court of Appeal adjusted the starting point for each robbery to 4 years before determining totality.

(h) In HKSAR v Chui Chi Hung [2007] 2 HKLRD 409, the appellant was an unfilial son who had been pressing his 78-year-old mother for money to spend. He was denied entry into his mother’s room in a flat shared by her with other tenants. He dashed into her room while a co-tenant left through the main door. He tried to drag her down the bed. When that failed, he gave her two blows on her back. She suffered minor injuries. The Court of Appeal approved a starting point of 5 years on the basis that firstly it involved an invasion of domestic premises, secondly actual violence was used and thirdly the victim was already 78 years old.

Relevance of previous records relating to robbery

7.  In Chui Chi Hung (above), the applicant was sentenced for robbery.  Lunn J, in delivering the judgment of the Court of Appeal, spoke of related records as an aggravating factor, at 412:

“11. In addition, in determining the appropriate starting point for sentence the Court was entitled to have regard to the fact that the applicant had been convicted of criminal offences on no less than 26 different occasions over a 40-year period. His offences include not only one of robbery, albeit a very long time ago, but also blackmail, theft and going equipped to steal. The applicant has received prison sentences with immediate effect on 15 of his previous appearances.”

Sentencing this Defendant

8.  The Defendant has 12 previous related records since 1994.  What saves him, however, from aggravation in sentence is the fact that the last of them, a theft resulting in 4 months’ imprisonment, has to be dated back to 2005.  In short, his previous records shall play no part in his present sentence.   

9.  The Defendant had tailed this 89-year-old female for 90 minutes.  He struck her head with his fist on the 15^th floor of a public housing block.  As she fell down, she sustained multiple incidental injuries of a minor nature.  She also suffered from cerebral contusion.  She was hospitalized for 4 days.  She lost her gold bracelet valued at $10,000.

10.  This case warrants a starting point of at least 4 years.  One-third off for the plea of guilty, his sentence is 2 years and 8 months.