HKSAR v. WONG KA WAI

DCCC687/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 687 OF 2011

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Reasons for Sentence

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1.  This is a somewhat strange situation. Originally, you pleaded not guilty to a single offence of robbery, contrary to section 10 of the Theft Ordinance, Cap.210, and to a single offence of burglary, contrary to section 11(1)(b) and (4) of that same ordinance. However, you admitted five offences of criminal damage, each contrary to section 60(1) of the Crimes Ordinance, Cap.200. In respect of these offences, you admitted the brief facts and I convicted you.

2.  The facts as placed before the court by Mr Lee on behalf of the prosecution by way of opening in respect of Charges 1 and 2 and by way of you to admit in respect of Charges 3 to 7: 

Charge 1: Robbery

3.  Around midnight on 13 April last, Wong Yiu-fung, PW1, was returning to his home in Wah Yuet House, Tin Wah Estate, Tin Shui Wai.  You followed him into the building and into the same lift.  You snatched his glasses and threw them to the floor.  You then punched PW1 several times to the face and asked whether he had any money.  You got out at the 29th floor. PW1 picked up his glasses from the floor, but you came back into the lift and snatched them back.  You then left.  PW1 reported the matter to the police.      

Charge 2: Burglary

4.  At around 0030 hours that same day you entered Room 2110 at that building via the unlocked door.  Mr Joe Nip, PW2, was lying on his bed.  He lived alone and had left the door open for easy access.  Previously, he suffered a stroke.  You asked to use the telephone and used the land-line.  You asked to borrow his mobile phone and then left with it.  PW2 then called the management.        

Charges 3, 6 and 7

5.  Between 0045 hours and 0100 hours you damaged the metal grilles at Units 1913, 1406 and 1407 by hitting them.       

Charges 4 and 5

6.  PW6 was patrolling on the 15th floor.  He found the glass of the fire doors smashed and blood stains.  He heard someone on the 14th floor shouting.  He then discovered the glass in the fire door there to be broken too.  He saw you naked and bloodstained, yelling on that floor.  He led the police to the scene.      

7.  On 18 April, you were interviewed under caution on video.  In respect of Charges 1 and 2, you made the following admissions:

1) You had quarrelled with your girlfriend, and when you saw PW1, you wanted to speak to him. You followed PW1 into the lift and hit him twice when he ignored you. Wanting to scare PW1, you asked if he had any money. You took his glasses to play with him.

2) You found the door to Room 2110 open and an old man lying inside. You asked to use his telephone, which was a land-line, and then the mobile. Finding the mobile would not work, you took it away and abandoned it on the 19th floor. It may have suffered damage when you threw it down.

8.  This case took an unusual turn.  The prosecution presented its case and the prosecution witnesses were cross-examined by Miss Chow on your behalf.  She indicated there was a challenge to two caution statements relating to Charges 1 and 2.  These were the charges you had denied. This issue was dealt with by way of the alternative procedure, you yourself giving evidence on the special issue.          

9.  In view of what took place subsequently, there is little that needs to be said for this matter.  Suffice it to say that having heard the evidence of PW4, the police officer who took the cautioned statement and yourself, I was satisfied beyond all reasonable doubt of their voluntariness and that there was no oppression in the manner in which they were taken.  They became full exhibits as P5 and P6 and I ruled accordingly.        

10.  The prosecution case was then closed and Miss Chow made a submission of no case to answer in respect of Charge 2, that is the allegation of burglary.  For reasons given, I agreed to the extent that I reduced that charge to one of theft of the mobile phone.  You entered a plea of not guilty to that charge also.    

11.  In respect of Charge 1, I ruled there was a case to answer.  Miss Chow then informed me that having been fully advised of your rights, you elected to give evidence.  During the course of that evidence the following points emerged to cause me disquiet and eventually let me to conclude that this was a case which called for trial de novo before a different judge:

1) The taking and disposal of PW1’s glasses, subject of the robbery charge, was presented on a totally different basis from that put to PW1 in cross-examination. Miss Chow attempted to address this problem, and I make no criticism of her for that, but even stretching a point, it was less than satisfactory. In my view, the very least that needed to be done was to recall PW1.

2) Whilst you had indicated in respect of Charge 2 you were prepared to plead guilty to criminal damage of the mobile phone, your evidence as you gave it amounted to a total denial of this position, and in fact a total denial that any offence had taken place.

3) In respect of the criminal damage charges relating to the glass fire doors, you presented a totally different version from the facts which you admitted on your conviction. In fact, the evidence that you gave, if accepted, amounted to a complete defence.

12.  The problem I faced was two-fold. 

1) The contradiction in your evidence and admissions made to positions indicated left me in an invidious position in assessing your credibility, because clearly you had been less than truthful on various points. Even as a professional judge, my ability to fairly rule on credibility was compromised. In short, were we to proceed in view of what had happened, it would be very difficult indeed to ensure that you would have received a fair trial.

2) On the face of it, your plea of guilty to at least some of the criminal damage charges, and indeed probably all, was portrayed as equivocal and your new version ought to be tried on a not guilty basis.

13.  By way of a side issue, whilst I cannot and would not stray into legal professional privilege, I did wonder whether Miss Chow could continue to present the case on a not guilty basis as it seemed absolutely clear to me that she was handicapped by the ever-changing evidence and positions that you had taken.         

14.  Desperate times call for desperate measures. Therefore, I allowed the parties time to consider, and without objection from the prosecution, which was very fair, allowed Miss Chow to take further instructions from you even though you were in the process of giving evidence-in-chief.

15.  After some time, and presumably some consideration and discussion, Miss Chow applied to me for you to be allowed to give your plea once again in respect of Charge 1, which was the robbery, and the newly amended Charge 2, which was theft.       

16.  I allowed this new change to your pleas to one of guilty in respect of each charge.  Miss Chow on your behalf indicated she was content for you to be convicted on the basis of the evidence presented by the prosecution witnesses.  This I did and you were duly convicted.

17.  Your pleas of guilty in respect of Charges 3 to 7 were to stand, as were the convictions.  Clearly, by implication, you were retracting the new version that you had given in evidence. 

18.  You admitted to five previous convictions and two breaches of court orders.  In view of the medical evidence, the evidence of what took place, and indeed your own demeanour in court, I remanded you in custody to Siu Lam for a probation officer’s background report, psychologist’s report and two psychiatric reports as I was considering, if appropriate, the making of a Hospital Order under section 45 of the Mental Health Ordinance.       

19.  Those reports are before the court.  I have read, considered and understood them.  Whilst you have no formal psychiatric illness that requires treatment, you do have a problem with alcohol abuse.  It is also clear that you have personal problems and issues which you must resolve if you are to keep away from crime.     

20.  I was told that you accepted the reports as being factually correct.  You had in fact indicated from the outset that in respect of the robbery charge, you were willing to plead guilty to assault occasioning actual bodily harm, and in respect of the burglary charge, to criminal damage.  Whilst this position was not acceptable to the prosecution, it was, in my opinion, relevant to sentence, especially in consideration of discount.  The reason is this demonstrated that you were not totally denying any wrongdoing and were prepared to accept responsibility for what had happened.       

21.  As we now know, that position was resolved in a different way. 

22.  Miss Chow entered mitigation on your behalf. First, she submitted that from the evidence, then with the medical report, the evidence of your behaviour as described by PW1, what you said to PW2 about people following you, and the stripping off of your clothes, that on the night of the offence you were highly intoxicated and highly emotional.    

23.  The robbery was an unarmed robbery and factually unusual.  The grabbing of the glasses, throwing them to the floor, punching PW1 on the face, asking for money and taking the glasses for a second time was strange.  It is clear that the fact that the glasses were not found with your abandoned clothing showed that you had no intention to keep the glasses.  There was no element of premeditation, and although PW1 was punched, fortunately he was not injured.    

24.  Miss Chow referred me to two sentencing authorities, but with respect, they were decided on their particular facts and were not akin to the circumstances before this court.  Whilst not meaning to criticise her efforts to assist, I could find they were not helpful.     

25.  Miss Chow referred me to your plea of guilty to the offence but accepted it was not at the first opportunity; in fact, it was in the course of your evidence. 

26.  In respect of the theft, she asked me to consider the evidence of PW2, who presented as certainly not being in fear of you and you were very polite in your behaviour.       

27.  With reference to the criminal damage charges, she submitted that although there were five, it was part of a course of conduct and they should be sentenced concurrently. 

28.  She asked me to note that your mother and your girlfriend are present in court to support you.  She produced the letter which you yourself had written to court in excellent English.  I have taken that into account.     

29.  Finally, Miss Chow asked me to afford you leniency. 

30.  I turn now to the sentence. 

31.  In response to my enquiry, the prosecution informed me that the total cost of repairing in respect of the five offences of criminal damage was $10,600; PW1’s lost glasses, $1,100; and PW2’s damaged mobile phone, $1,300.  This is a total of $13,000.  Miss Chow did not seek to enter any counter argument to these valuations. 

32.  I fully accept that at the time of the commission of these offences, you were highly intoxicated and highly emotional.  Miss Chow made it abundantly clear that you did not seek to rely on this as a defence, by saying that you had an  inability to form the necessary mens rea of the Charges 1 and 2.  The circumstances leading to your highly emotional and intoxicated state lay in a domestic argument with your girlfriend.  Also, I am satisfied there was no premeditation.  Things simply got out of hand. 

33.  The robbery, whilst it is a robbery, is most unusual. You were not armed, the victim was not injured, and the theft of the spectacles I accept was motivated by a desire to cause mischief rather than of taking them to keep.  The theft itself of the spectacles was the abandoning of them in circumstances where they were never found, thus dealing with them as your own.

34.  The theft of the mobile was also odd.  PW2’s evidence portrayed you as being polite and that you were allowed to borrow the mobile which you abandoned on the 19th floor, again is usurping the rights of the owner.    

35.  Even the criminal damages were totally irrational and in some ways inexplicable.  Clearly these were not revenge attacks, as is often the case.  You bore no grudges against the owners of the property. 

36.  However, I have to say that individually and together these are serious offences but not of a conventional level of criminality.  That you were found naked and bleeding bears eloquent testimony to your state of mind at the time.      

37.  I do not view these in the normal way.  You do not have a clear record, having in the past committed crimes of dishonesty.  I do take into account the contents of the various reports that have been presented to me.  Clearly, you do have issues to address and you must keep away from alcohol.  I also take into account that from the outset you were willing to admit to crimes and fault in respect of Charges 1 and 2, but not the crimes actually alleged.  You did change your plea in respect of Charge 1 at a very late stage and similarly in respect of Charge 2, but that had been reduced to theft by that stage. 

38.  Clearly, you should not have the benefit of the full one-third discount on these two offences, but erring possibly on the side of mercy, I do find that given all the factors that a discount of 25 per cent is appropriate.  As I indicated, I am not taking the normal starting points from these types of offences because of the unusual nature.    

39.  Charge 1, robbery, I take as a starting point 36 months’ imprisonment, reduced to 27 months. 

40.  Charge 2, theft, this is a relatively trivial matter, I take a starting point of 12 weeks’ imprisonment, reduced to 9 weeks for your plea of guilty, to be served concurrently to the 1st offence. 

41.  In respect of the five criminal damage charges, I agree entirely with Miss Chow that these were a course of conduct, even though they were five individual offences.  I take as a starting point 6 months on each, reduced to 4 months on each, which will be served concurrently with each other but consecutively to the first period on Charge 1. 

42.  That is a total imprisonment of 31 months’ imprisonment.  

43.  Finally, I would like to thank Mr Lee for the prosecution and Miss Chow for the defence for their assistance to what turned out to be a somewhat complex matter.