HKSAR v. LI TAK MING

DCCC438/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 438 OF 2010

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

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

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

Reasons for Sentence

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

1.  These are my reasons for sentence. The defendant has been convicted after trial on one count of robbery, contrary to section 10 of the Theft Ordinance (Cap. 210). He has shown no remorse.

2.  On the evidence adduced before me, I was satisfied beyond all reasonable doubt that at about 11.15 am on 17 March 2010, PW1, Mr Wong Yick-ho, who was aged 59 years, was robbed by the defendant outside the Yu Kee Food Company Limited at Shop A at the ground floor of No. 65 Yeung Uk Road, Tsuen Wan.  The defendant hit him on the back of his head with a wooden plank with at least two blows causing PW1 to fall to the ground and lose consciousness.  The defendant then took PW1’s wallet from his inner jacket pocket containing cash of about $300, his Hong Kong identity card and his Octopus card.

3.  The defendant was seen by PW2 when he was bending over PW1, and PW2 saw the defendant take the wallet from inside PW1’s inner jacket pocket.  The defendant then left the scene with PW2 following behind him.  PW2 saw him enter a tenement building.  PW2 waited there until the police arrived within minutes and told the police officers the male had entered the building.

4.  PW2 then went with the police officers into the building and pointed out the defendant to the police officers.  The defendant was at that time seen coming down the stairs.  He had bloodstains on his clothing and shoes, which bloodstains could have emanated from PW1 according to the forensic evidence.  Although PW2 was not absolutely sure that the defendant was the male he had seen, he described himself as being 90 per cent sure.

5.  The defendant had bloodstains on his clothing and shoes that could have come from PW1 and the defendant had also made admissions to PW4 under caution at the scene, and to PW5 in the subsequent video interview under caution back at the police station.  He had admitted hitting PW1 on his head with a wooden plank he had picked up at the scene and he had admitted taking PW1’s wallet from him.  PW1 had to have stitches for the wound he sustained.

6.  PW2 also should be commended for his act of following the defendant and waiting for the arrival of the police to point to them where he had seen the defendant go.  But for his act it is unlikely that the defendant would have been apprehended.

7.  The defendant is now aged 62 years.  He lives alone here in Hong Kong.  According to his antecedents statement he has attained Primary 5 education and was employed as a casual cement worker.  He does take dangerous drugs.  His criminal records dates back to 1962.  He has had 36 court appearances, his most recent being in 2008 for the offence of theft when he was sentenced to 2 months’ imprisonment.  He has three previous convictions for robbery, the last being in 1995.  His criminal record is an appalling one.  There is very little mitigation of weight before me.

8.  Sentencing guidelines for armed robbery cases were set in the case of R v Mo Kwong Sang [1981] HKLR 610.  The Court of Appeal said:

“We suggest that in future the appropriate sentence in an ordinary case of armed robbery where the accused was carrying a knife or other dangerous weapon which he displayed to his victim should normally be 5 years.

If such a robbery also involves an invasion of private premises (which includes domestic and business premises, and the common parts of premises such as lifts and staircases), we suggest that a sentence of 6 years would be appropriate.

If any physical force which includes tying them up is used on any of the victims we suggest that a sentence of 7 years should be considered.

These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night, the presence of more than one person in the group of robbers, threats made to victims, ill treatment of elderly persons and children, and a multiplicity of offences of a similar kind.

These guidelines are intended to apply to those who are convicted after trial. Thus the suggested sentences should be reduced by such amount as the court may think appropriate for a plea of guilty.

Nothing which we say, of course, should be construed as inhibiting a court from adjusting these sentences to accord with the record, age, or other personal circumstances of the accused or from taking account of the particular facts of the case before it.

We realise that the adoption of this suggested level of sentence will mean that in some cases the appropriate sentence will be above the maximum which the district court is permitted by law to impose.

Where a district court would be disposed, had it the power to do so, to impose a sentence exceeding 7 years, the correct course would be for the judge to indicate what sentence he would have awarded if he had been able to do so and then to impose one of 7 years’ imprisonment.”

9.  In Mo Kwong Sang the Court of Appeal had made clear that by armed robbery they refer to the use of knives and other dangerous weapons, but not to firearms.  In our present case a wooden plank was used to assault the victim.  The defendant picked up the plank from the vicinity and used it to hit PW1 from behind more than once on the back of his skull.  It is only by the greatest of good fortune that PW1 was not more seriously injured.

10.  Counsel also referred to the Secretary for Justice v Ma Ping Wah [2000] 2 HKC 566, where the Court of Appeal considered the appropriate sentence for robberies involving head bashing.  In delivering his judgment, Stuart-Moore VP said at page 574:

“In our judgment the usual sentence to be imposed for such robberies following a contested trial, where it is established that a delivered blow to the head with a weapon capable of causing injury to the brain had been struck by the robber or culprit who is intent on robbery, should not be less than 8 years’ imprisonment. This is not of course a straitjacket and there may be some offences where a lesser penalty can be imposed depending on all the circumstances. Equally depending on how severely the victim is injured, there will be other cases for which greatly increased sentences will be required.”

11.  Counsel for the defendant submitted that this was not an ordinary case of head bashing, it was at 11.30 in the morning in a busy area near a bus stop.  It was not planned and the defendant did not go out equipped with any weapon.  Also the injuries sustained by the victim was not of the most serious.

12.  I accept that there is no evidence that there was any planning by the defendant, but the blows inflicted were severe enough to cause PW1 to lose consciousness and resulted in considerable blood loss. There was blood on the pavement where he laid after being assaulted, as well as blood on the defendant’s clothing and shoes.  PW1 had to be admitted, albeit he was discharged the next day, and he had to have sutures. 

13.  Bearing in mind the gravity of the circumstances of this case and the guidelines set down by Mo Kwong Sang and Ma Ping Wah, in my view the appropriate sentence would have been one of 8 years’ imprisonment, however, I do not have the jurisdiction to impose that sentence. The defendant is therefore sentenced to 7 years’ imprisonment.