HKSAR v. LUI WING SHING

DCCC226/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 226 OF 2012

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Reasons for Sentence

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1.   The defendant has pleaded guilty to four charges:  two counts of falsely pretending to be a public officer, contrary to section 22(1) of the Summary Offences Ordinance, Cap.228, Charges 1 and 3; one count of theft, snatching, contrary to section 9 of the Theft Ordinance, Cap.210; and one count of robbery, contrary to section 10 of the Theft Ordinance, Cap.210.

2.   At about 1.45 pm on 6 December last year, Law Tung-shing, PW1, aged 15, was walking past a supermarket in Old Main Street, Aberdeen, with his mobile telephone in his hand.  The defendant suddenly grabbed PW1’s left hand and pulled him into a rear lane nearby.

3.   Inside the rear lane, the defendant told PW1 that he was anti-triad and asked PW1 who he followed.  The defendant also inserted his hand into PW1’s trouser pocket and attempted to take out PW1’s wallet but his hand was pushed away by PW1.  The defendant then asked to inspect PW1’s mobile telephone whilst PW1 asked to see the defendant’s warrant card.  The defendant suddenly snatched away PW1’s telephone valued at $2,500 and fled.  PW1 then made a report to the police.

4.   At about 5 pm on 24 December, Yeung Yat-sing, PW2, aged 17, and Hui Wai-ki, PW3, aged 14, were playing electronic games in an amusement game centre in Old Main Street, Aberdeen, when the defendant suddenly approached them.

5.   The defendant told PW2 and PW3 that he belonged to the anti-triad team and demanded to have a chat with PW2 outside. PW2 followed the defendant to a rear lane near the rear entrance of the game centre.  Inside the rear lane, the defendant asked PW2 whether he had followed anyone.  PW2 replied in the negative, whereupon the defendant suddenly punched PW2 in the abdomen once and ordered PW2 to take out all his properties.  PW2 complied.  The defendant then snatched PW2’s I-phone and put it inside his shoulder bag. 

6.   Suspecting that the defendant was not a police officer, PW2 tried to snatch back his I-phone.  A struggle ensued.  The defendant punched PW2’s left face about 10 times.  Subsequently, PW2 managed to retrieve his telephone and fled.

7.   Later on the same day, PW2 and PW3 met the defendant again and reported the matter to the police.

8.   The defendant was arrested by the police on 2 January this year.  Under verbal caution, the defendant admitted that he had been to the games centre at about 4 pm on 24 December and that he had impersonated a police officer of the anti-triad unit and asked a 16 to 17-year-old male to go to the rear lane with him.  He admitted that he attempted to take away the teenager’s I-phone but the teenager resisted.  He punched the teenager’s face several times and left.  The defendant repeated the same confession in a subsequent video recorded interview.

9.   In another video recorded interview under caution the defendant admitted having stolen PW1’s mobile telephone. 

10.   PW1 and PW2 attended an identification parade.  The defendant was positively identified by PW1.  PW2 failed to identify the defendant, however, the defendant said to the OC Parade that he was remorseful for his wrongdoing and asked the court for leniency.

The defendant’s record and mitigation

11.   The defendant is aged 28.  He is married and has two children, aged 6 and 3 respectively.  His wife is aged 26 and has started to work as an odd-job worker in McDonald’s recently, earning about $6,000 per month.  The defendant lives with his own family - his mother and a younger brother.  His two younger sisters are married and living apart. 

12.   The defendant has three previous convictions, one of which was for theft and one for assault.  He has been abusing various types of drugs since the age of 15 or 16 and has been experiencing psychotic features for over 5 to 6 years.  He has been sentenced to DATC but he resumed taking drugs after release. 

13.   Counsel submitted that the defendant had committed these offences out of poverty.  However, it appears that counsel is unable to argue against the fact that the defendant spends at least part of his money on drugs instead of his family.  Counsel submitted that the defendant had impersonated a police officer to minimise the resistance from the victims and thereby minimise the violence.

Reasons for sentence

14.   The facts of this case are very serious. Impersonating a public officer is in itself a criminal offence.  The defendant committed Charges 1 and 3 in order to further other serious criminal offences. The facts of this case are at the highest end of this offence. 

15.   I wholly disagree with counsel that the defendant had impersonated a police officer in order to minimise violence.  It was evidenced from the admitted facts in relation to Charge 4 that the defendant resorted to violence at the outset before there was any sort of resistance from PW2.

16.   For Charges 1 and 3, I adopt a starting point of 6 months for each offence.  The defendant has pleaded guilty; he is entitled to the full discount.  The sentence is reduced to 4 months.

17.   In Charge 2, the defendant snatched the telephone from PW1.  There are sentencing guidelines for this type of case. For a  person with a clear record, the appropriate starting point is 12 to 15 months’ imprisonment.  The defendant is not a person with clear record, he has one previous conviction for theft.  He preyed on a youngster and impersonated a police officer to commit this offence. 

18.   For Charge 2, I adopt a starting point of 18 months.  The defendant has pleaded guilty; I give him full credit for his guilty plea.  The sentence is reduced to 12 months.

19.   As for Charge 4, the defendant also impersonated a police officer to commit the offence and preyed on a youngster. He committed multiple offences within the space of 3 weeks.  I adopt a starting point of 4 years.  I give him full credit for his guilty.  The sentence is reduced to 32 months.

20.   Charges 1 and 2 are part and parcel of the same incident.  I order that the sentences for those offences to be served concurrently.

21.   The incident for Charges 1 and 2 is wholly distinct from the incident in Charges 3 and 4.  Technically, the sentences for Charges 3 and 4 should be wholly consecutive to the sentences of Charges 1 and 2.  However, I have to take into consideration the principle of totality. 

22.   I order that the sentences for Charges 1 to 3 to be served concurrently.  However, 8 months of Charge 2 will be served consecutively to Charge 4.  That makes a total sentence of 40 months.