HKSAR v. LI CHUNG

HCCC 316/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 316 OF 2017

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

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COURT:

The defendant pleaded guilty before a magistrate to one charge of attempted robbery and was committed to the Court of First Instance for sentence. In sentencing, I take into account the whole circumstances of the case including its nature and facts, personal background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarised as follows.

The defendant who dressed like a female and wearing a mask and a cap entered the clothes shop in Central where a young part-time sales lady, then 20 years of age studying final year in a IVE course, was working alone at that time. He suddenly pulled down his mask and produced a knife pointing it at the sales lady. He pushed her into a corridor inside the shop. In the course, he grabbed her legs causing her to lose balance and fall onto the floor. When she shouted for help, the defendant told her to keep quiet and pulled up her shirts to cover her head. The sales lady put up a struggle and pulled off the wig and cap the defendant was wearing. When the sales lady asked the defendant to let her stand up, he allowed her to do so and told her that he was just for money, not sex. The defendant still had the knife in his hand.

Two passers-by who heard the screaming of the sales lady entered the shop but they could not see the defendant and the sales lady because the view was blocked by the curtain hanging at the entrance of the corridor. Realising someone had arrived, the defendant gestured the sales lady to open the back door. She was however too scared and could not open the door. When one of the passers-by asked if help was needed, the defendant responded that she was fine, just making something and told the sales lady again to open the door.

At that juncture, a passer-by pulled away the curtain and discovered the defendant and the sales lady there. The defendant at once put on the wig he had dropped and rushed out of the shop as efforts to stop him failed. A report was made to the police. After a while, the defendant returned with a knife in his hand. He picked up the wallet from the floor and left. One of the passer-by, PW2, then discovered his wallet was missing.

The defendant was stopped by police officers in Sheung Wan later. A bra, a knife and a wallet containing the identity card of PW2 were found in a bag held by the defendant. The defendant was arrested for robbery. Under caution, he said he robbed because he owned someone $100,000. He also said he took the wallet because he thought it was his. In a subsequent interview, he gave further details which were consistent with what he had said upon arrest. He said he had no intent to injure anyone.

The sales lady put up a strong resistance since she thought the defendant was going to sexually assault her. She suffered laceration over her right thumb, index finger and middle finger. She has to undergo operation to repair the lacerations. The fingers are disfigured. She still has to receive physiotherapy and occupational therapy to regain full movement of her right index finger. The sales lady is emotionally disturbed by the unpleasant appearance and declining functioning of her disfigured fingers.

Trauma responses and emotional distress undermine her concentration and academic performance. An impact report shows that she still has the severe traumatic stress responses and emotional disturbances particularly in automatic arousal intuition of traumatic experience and defensive avoidance. It is opined that the sales lady will benefit from psychological treatment.

The defendant is now 49 years of age. He received education up to Form 5 level and had worked as a cleaner and construction site worker. He is divorced and living alone. He is not a first time offender. On five previous occasions, he had been convicted. The first offence he committed was AOABH when he was convicted in 1990 and was given a suspended sentence which he breached by committing further offences. The defendant proceeded to commit a series of crimes including robbery, offences relating to arms or ammunition and kidnapping.

In 1992, for five robbery charges and one arms related charge, he was sentenced to a total of 14 years’ imprisonment. In 2003, for one kidnap offence and two arms related offences, he was sentenced to a total of 10 years’ imprisonment. In 2014, for an offence of fraud, he was sentenced to 4 months’ imprisonment.

Learned counsel for the defence, Mr Ching, urged the court to take into account that the defendant had pleaded guilty at the earliest opportunity and said the defendant is now remorseful. He said the defendant maintained that he had no intention to harm the sales lady. Mr Ching also informed the court that after the defendant had served his last imprisonment term. He secured an employment in the construction field. Later, being invited by a friend, he intended to start his own business in the field and for this purpose, he took out a loan of $100,000. The plan did not materialise as his friend disappear afterwards. As a result, the defendant was in heavy debt. Despite he worked hard, he had difficulty in repaying the debt. It was in this circumstances that the defendant committed this offence. Mr Ching asked the court to be as lenient as possible.

This was a case of armed robbery committed in a shop. It was then only manned by one young lady. I have had regarded to the Court of Appeal decisions of Mo Kwong Sang v Queen [1981] HKLR 610 and HKSAR v Man Siu Ming CACC 318/2011. The robbery was premediated and involved a degree of planning. The defendant admitted under caution that when he decided to rob, the shops in this locality where he had carried out renovation work before came to his mind. He chose his particular shop because it was a shop nearest to a public toilet where he could put on wig and clothing to conceal his identity.

He was armed with a knife with a blade about 10 centimetres long. It may not be lethal as some other weapons but is capable to cause substantial injury. He did not discard it when the sales lady put up a struggle. It was at least reckless as to whether injury would be caused to her. Some force was used on her as well. As a result, the sales lady suffered a quite serious injury in her fingers. The sales lady must have been in great state of fear and it was not a short episode. She is still suffering from both physical and psychological harm and report indicates that a full recovery will not be likely in the near future. The incident caused long term consequences to the sales lady.

In my judgment, only a starting point of 7 years and 3 months is sufficient to reflect the nature and degree of seriousness of the present case. In addition, the bad criminal record of the defendant is a matter which the court must not ignore. Despite the last conviction for the offence of robbery took place quite a long time ago. Record shows after his discharge from prison for these offences, he did not take the opportunity to turn over a new leaf and instead proceeded to commit offences of serious nature. For this matter, I am of the view that the starting point should be enhanced by 1 year. In all the circumstances, I adopt an ultimate starting point of 8 years and 3 months.

The defendant pleaded guilty and for this, he is entitled to a one-third discount. Having considered the whole circumstances including mitigation put forward on his behalf by Mr Ching. I am of the view that one-third is the extent of discount the defendant is entitled to.

For the reasons I have mentioned, I sentence you to an imprisonment term of 5½ years.