HKSAR v. LAM HAU MING AND ANOTHER

DCCC302/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 302 OF 2009

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Reasons for Sentence

1.  There are two defendants in the case.  They each pleaded guilty to one charge of robbery with which they are jointly charged, which is Charge 1.

2.  D2 further pleaded guilty to one charge of possession of an Identity Card relating to another person, which is Charge 2. 

3.  In sentencing I take into account the whole circumstances of the case, including its nature and facts, personal background of each defendant, mitigation put forward on their behalf, and have had regard to sentencing precedents.

4.  The robbery took place in a guesthouse.  The victim was its keeper.    

5.  At the early hours on 29 December 2008 she received the two defendants who posed as customers and showed them to a room.  There, she was subjected to force.  The defendants dragged her to the floor and attempted to close the door.  She kicked her feet to keep the door open and raised a hue.

6.  During the struggle, she was dragged to the floor.  The defendants kicked and punched her head and upper body.  She was also threatened that if she dared to make further noise as she did earlier she would be stabbed. 

7.  D1 then pinned her on the floor and gagged her with a towel which D2 had taken out from the toilet.  Cash of $160 and keys were taken from her.  D2 went out to ransack the counter and used the keys to open drawers.  D1 continued to guard the victim. 

8.  Later D2 returned and complained that there was only a small amount of money.  When the victim replied that the business was poor, they took her for further search. 

9.  The robbery was noticed by an off-duty police officer who happened to be in the guesthouse.  He made a report. 

10.  When police officers arrived, the defendants pretended to be innocent guests and tried to escape.  The victim managed to alert the officers that they were the robbers. 

11.  She then felt dizzy as a result of the assault. 

12.  D1 was arrested inside the guesthouse.  D2 managed to run downstairs and was stopped at the lobby by another officer.  He put up a struggle.  After a hot pursuit, he was subdued by the police officer with the use of police baton. 

13.  Apart from the $160 taken from the victim, another $1,980 and her mobile phone placed inside a locked drawer at the counter were also stolen.

14.  D1 admitted to have gone to the guesthouse with D2 to rent a room. 

15.  D2 admitted the offence.  Some stolen properties were found on him.  

16.  The victim suffered the following injuries in the robbery: tenderness and swelling over her head and both upper limbs, and abrasion wounds over her left ankle. 

17.  D1 is now 35 years of age.  He is single.  He received education up to Form Three and started work at the age of 14.  He had worked as a printing worker, a carpenter and a cleaning worker.  He had also been an apprentice in a hair salon.  He was living with his aged mother and family.  His father had passed away.  His three younger siblings are still studying.  I am told he is now very remorseful. 

18.  He is not a first offender.  He was on five previous occasions convicted.  The first conviction was back in 1992 when he was 19 years old for the offence of common assault.  He was fined.  In 2003 he was sentenced to 36 months’ imprisonment for an offence of robbery.  Most of the other convictions were in relation to dangerous drugs.  In March 2007 he was sentenced to DATC for treatment for the offence of possession of Part 1 Poison.

19.  I was told that the defendant, that is, D1, was suffering from some mental illness.  I therefore obtained a psychiatric report before sentence. 

20.  It was revealed in the report that D1 was known to the Mental Health Service for his multiple substance abuse.  The psychiatrist gave the opinion that D1 was fit to plead.  He further opined that D1 had serious drug problems but was not otherwise suffering from any mental illness.

21.  In all the circumstances, I am of the view that this matter has little bearing on the sentence to be imposed on D1. 

22.  Learned counsel for the defence told the court that he had taken specific instruction and confirmed that D1 had the full mens rea of the offence at the material time. 

23.  D2 is 36 years of age.  He received education up to Form One and started work at the age of 16.  He had worked as a metal apprentice and an electrical technician.  He lost his employment after an industrial accident in which he was deprived compensation.  He is single.  He is now living apart from his father and eight elder siblings.  His father is 82 years old and does not enjoy good health.  His mother has passed away. 

24.  I was told that the defendant committed the present offence for his lack of means.  He was co-operative during enquiry and is now remorseful.  He had involved in some voluntary work with the children in the mainland.

25.  D2 is also not a first offender.  He was on five occasions convicted.  The first one was in 1994, he was fined for an offence of AOABH.  He was also convicted on three occasions for burglary offences, the last being in February 2007.  The other offences he committed are criminal damage and possession of Part 1 Poison.

26.   The present case is a very serious one.  Obviously the robbery was premeditated.  The defendants came equipped with surgical masks, plastic gloves, screwdriver, adhesive tape and glass glue.  These items were found inside a bag carried by D2. 

27.  The two defendants committed the robbery in concert with each other.  They preyed on an easy target of a lone lady working in a guesthouse and committed the offence in the early hours of the day. 

28.  They subjected the victim to substantial force and fear.  She was gagged.  Keys were taken from her and the premises were ransacked while she was guarded by someone who had assaulted and threatened to harm her if she did not keep quiet. 

29.  No weapon was used.  Luckily, the victim was not seriously injured.  However, how terrifying the situation she experienced is easy to imagine.  It was not a very short episode.  She felt dizzy and was too scared to make a move when the police first arrived.

30.  The conviction records of both defendants should not be ignored. 

31.  In all the circumstances, I am of the view that a  starting point of 5 years is appropriate for the robbery. 

32.  I do not think there exists any material distinction between the two defendants as far as culpability is concerned.

33.  As regards Charge 2, D2 was in possession of an Identity Card relating to another person.  D2 did not account for how he came to have and why he was in possession of the important document.  The original card holder, who did not know D2, lost the card in June 2006, more than two years before the incident.

34.  I have had regard to the case of HKSAR v Li Chang Li, HCMA935/2004.  In that case the Court of Appeal said, “Generally speaking, a document of identity cannot possibly be a plaything or collector’s item.”  It follows that people who possess false Identify Card or Identity Cards belonging to others, must be doing so for the purpose of concealing their true identity so that they can work illegally in Hong Kong.  This is so whether their presence in Hong Kong is lawful or not.

35.  D2 is a Hong Kong Permanent Resident.  Possession of the Identity Card would not be for the purpose of facilitating his own illegal stay in Hong Kong or seeking of job.  I therefore do not consider the sentence which the Court of Appeal suggested in the case of Li Chang Li appropriate and applicable in the present case. 

36.  Nevertheless, possession of such an important document must invite the inference unless contrary evidence exists that it was for some illicit purpose.  Upon invitation by the court, counsel for the defence had nothing to say in relation to this charge.  

37.  I am sure I am entitled to take a sinister view of the reason for possessing the Identity Card, especially as D2 was in possession of it when he was committing an offence of robbery.   

38.  I note that, as a matter of fact, D2 did not produce the Identity Card to the police officer.  The aggravating feature of using the Identity Card did not exist but the sinister view is justified in the circumstances of the case.

39.  Having regard to the cases of R v Kwok Hoi Ming, MA188/1991, HKSAR v Chan Cho Hei Joe, HCMA274/2000, and HKSAR v Chan Tsan Fai, HCMA312/1998, I am of the view that a custodial sentence is called for and a starting point of 12 months appropriate.

40.  Both defendants pleaded guilty, they are each entitled to a one-third discount for this reason.   

41.  Having considered the whole circumstances, I am of the view that this is the extent of discount which both defendants are entitled to in this case.   

42.  Based on the matters aforesaid, I sentence both defendants to 40 months’ imprisonment for Charge 1 and sentence D2 to a further 8 months’ imprisonment for Charge 2. 

43.  D2 committed two offences of a different nature though they took place at the same time.  Wholly concurrent sentences are not appropriate.

44.  Having regard to totality, I order 5 months of the sentence imposed on Charge 2 to run consecutively to that imposed on Charge 1, making a total sentence of 45 months’ imprisonment for D2.