HKSAR v. LAI KWAI SANG

DCCC1067/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1067 OF 2008

--------------------

--------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant was charged with one each count of common assault and of assault with intent to rob, which is the 2nd charge.

2.  He pleaded guilty to the Charge 1 on the first day of the trial and was convicted accordingly. The trial proceeded on Charge 2 on 6 July. After trial, I convicted the defendant of the 2nd Charge and here are the reasons for sentence.

The Prosecution’s Case

3.  Just now, I have detailed the facts of the case in my Reasons for Verdict relating to Charge 2.

4.  In gist, the victim was acquainted with the defendant beforehand. On 13 September 2008, the victim was waiting for a taxi in Mongkok area. The defendant suddenly approached her and had a brief dialogue with her. Then the defendant punched the victim in her face about ten times. The defendant tried to snatch the handbag that the victim was carrying across her body. The victim succeeded to grab hold of her handbag and the defendant fled the scene empty-handed. The victim sustained certain minor injuries.

5.  In relation to Charge 1, the Summary of Facts that was admitted by the defendant is as follows:-

(1)  At about 7.50 pm on 19 July 2008, another victim, Lau Man-chi (“second victim”), was standing outside No. 39 Sai Yee Street, Mongkok.

(2)  The second victim knew the defendant.

(3)  The defendant approached the 2nd victim and slapped her face once.  Then the defendant used his hands to assault the 2nd victim’s head several times.  The defendant fled the scene when someone shouted, “Police”.

(4)  When the 2nd victim was making a phone call, the defendant returned back and hit the 2nd victim’s head once which caused her to drop her phone on the ground.  The defendant then fled.

(5)  The 2nd victim received medical treatment at Kwong Wah Hospital on 19 July 2008.  The 2nd victim was found to have sustained tenderness over the nasal bridge and the scalp.

Mitigation

6.  The defendant is not a drug addict anymore. In relation to the Charge 1, the defendant claimed that he had grudges with the 2nd victim beforehand. He had an appointment with the 2nd victim’s boyfriend, Kwok. At that time, the defendant had a quarrel with the 2nd victim(?) and he lost his temper and then assaulted the 2nd victim. There is no mitigation put forward on the 2nd Charge.

Sentence

7.  The defendant is aged 31. He had 9 previous convictions with one similar. On 31 July 2007, the defendant was convicted of the offences of criminal intimidations and criminal damages and was sentenced to 6 months’ imprisonment, suspended for 36 months. The present offences were committed in July and September 2008 respectively.

8.  In respect of Charge 1, this was a malicious attack, particularly in the light that the defendant knew the 2nd victim. There might well be certain reasons for the attack. I do not accept that the defendant acted out of momentarily impulse to punch the 2nd victim. The defendant even returned to hit the 2nd victim when the latter was using her mobile phone. However, it is not for the court to speculate the reasons behind this villainous attack. The 2nd victim suffered minor injuries.

9.  I will take 6 months as the starting point. With one-third reduction, the defendant is sentenced to 4 months’ imprisonment in respect of Charge 1.

10.  As in regards to Charge 2, this was effectively a kind of an unarmed attempt robbery. Although the defendant knew the victim before the incident, he had no hesitation to punch his lady friend or acquaintance. Fortunately, the victim did not suffer any permanent injuries. This was a blatant attempt to snatch the victim’s handbag in a busy street during the day.

11.  The defendant showed no remorse in committing this offence. In the present case, the victim sustained injuries although she did not lose her handbag.

12.  Counsel for the prosecution submitted two cases for my reference, HKSAR v Chan Man CACC359/2005 and HKSAR v Chow Kin Chung CACC8/2007, but they are of limited use in the present case.

13.  Although the defendant has indicated his plea to assaulting the victim when the trial started. I took this as a kind of tactical move so as to exonerate, to some extent, his criminality in the 2nd Charge which attracts much heavier sentence.

14.  In HKSAR v Lam Ka Hung CACC294/2003, the Court of Appeal confirmed its previous decision in HKSAR v Ting Chiu [2003] 3 HKLRD 378 that a starting point of 4 years is proper. I will add that 4 years is proper for unarmed robbery. I will adopt 4 years as the starting point. As there is no mitigation on this charge, I will sentence the defendant to 4 years.

15.  I have considered the principle of totality. I order that 2 months of the 1st sentence be served consecutively to the 2nd sentence.

16.  I have considered the submission made by counsel in relation to the suspended sentence. As the present two offences were committed about one year after the imposition of the suspended sentence, I will activate an imprisonment term of 4 months. As such, the defendant is to serve a total sentence of 4 years and 6 months.